NY Times Book Review–Sisters in Law

September 20, 2015

On Sandra Day O’Connor and Ruth Bader Ginsburg– Sisters in Law

by Linda Greenhouse

Two young women, near age-mates, grow up in very different corners of the country, one in near isolation on a vast Southwestern cattle ranch and the other on the crowded streets of Brooklyn. They obtain superb educations, enter into early marriage and motherhood, and set out to make their way in a man’s world. Decades later, we find them, having broken through more than a few glass ceilings, sitting together on the United States Supreme Court.

For anyone interested in the court, women’s history or both, the story of Sandra Day O’Connor and Ruth Bader Ginsburg, their separate routes to the Supreme Court and what they accomplished during the more than 12 years they spent together is irresistible. But “Sisters in Law,” with its ambitious subtitle, raises more questions than it answers. Did Justices O’Connor and Ginsburg really change the world? Or did they make it all the way to the Supreme Court, as the first and second women ever to serve there, because the world had changed?

There is a fascinating book struggling to emerge from the narrative structure Linda Hirshman has imposed on rich material. We glimpse it on those occasions when Hirshman chooses to highlight not the similarities between the two women but their differences. “Sandra Day O’Connor played defense; she would not permit the courts to roll the equality ball backward,” we’re told, while Ruth Ginsburg, for her part, “played offense.” Another way to put it, perhaps, is that while Ginsburg set out to change the world for women through her advocacy and her skill at picking just the right case to bring to the court at the right time, O’Connor had no such ambition. She chose to live largely in the world that continually opened before her, as she turned her social networks to her advantage and found her way into electoral politics. (She became majority leader of the Arizona Senate, the first woman in the country to hold so high a state legislative office.) O’Connor’s gift was the instinct for strategic and indispensable compromise. During her years at the center of the court — the role played since her departure in 2006 by Justice Anthony M. Kennedy — she often deployed concurring opinions “to make the conservative rulings more liberal and liberal opinions more conservative, usually by tying the outcome to the particular facts in the case.”

“O’Connor was by no means a committed strategist for women’s rights,” Hirshman writes. “She was not a robust voice for social change.” Hirshman, a lawyer and a scholar of feminism, whose last book was the well-received “Victory: The Triumphant Gay Revolution,” writes with authority and obvious admiration about Ginsburg (although with an odd fixation on the justice’s physical stature, describing her variously as “tiny,”  ­“minuscule,”  “skinny,”  ­“petite,”  “small” and, twice, “diminutive”).

But Hirshman struggles noticeably with what to make of O’Connor (“large, blond,”  “open-faced, cheerful and energetic”), and with how to fit her into the book’s overall construct. Hirshman properly cites O’Connor’s “tightfisted votes for equality,” her “ungenerous opinions even in cases where she voted for the woman’s side” and her “endless dalliance with allowing ever more intrusive restrictions” on access to abortion. She ex­presses puzzlement at O’Connor’s support for President Richard Nixon’s nomination of a fellow Arizonan, William H. Rehnquist, to the Supreme Court in 1971. O’Connor’s “passionate advocacy” for Rehnquist — she offered to testify for him at his confirmation hearing but was told that wouldn’t be necessary — “presents the question of how serious a feminist she was.” Really? Maybe O’Connor wasn’t thinking in ideological terms at all, but was simply thrilled that her old friend, with whom she had shared top academic honors at Stanford Law School, had reached the pinnacle of the legal profession.

The book’s title is offered without irony, but while Hirshman is too astute an observer to believe it fully, she is stuck with it nonetheless. This would have been a more coherent and satisfying book had she been willing to portray her subjects as I think she actually does understand them: not as sisters yoked together in a common project, but rather as representatives of the different ways that smart, ambitious women navigated life in mid-20th- century America, when social norms and expectations were changing but old patterns still prevailed.

Ginsburg, rejected for a clerkship by Justice Felix Frankfurter despite recommendations from leading law professors of the era because “I’m not hiring a woman,” eventually committed herself to uprooting the legal system’s built-in assumptions about the appropriate roles for women and men. O’Connor, offered a job as a legal secretary at a big California law firm because “our clients wouldn’t stand for” being represented by a woman, has probably never to this day labeled herself a feminist. With one avenue blocked, she shifted course and made her way in private practice and government service.

But by the choices she made, O’Connor lived feminism as a fact even if she didn’t embrace it as a cause, as Joan Bis­kupic documented in her sure-footed 2005 biography, “Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice.” Upon taking her seat on the court in September 1981 (three years almost to the day after “First Monday in October,” a comedy that played the notion of a female Supreme Court justice for laughs, opened on Broadway), O’Connor became the ultimate symbol of women’s progress. In retiring in January 2006, at the age of 75, to care for her Alzheimer’s-disease-stricken husband, she became a symbol of women in a more traditional role, as caregiver. (While male justices have become widowers while serving on the court — Justice William J. Brennan Jr. and Chief Justice Rehnquist are recent examples — none left the bench to care for their spouses.)

In the book’s final pages, Hirshman suggests what might have been a powerful theme: that there had to be a Sandra Day O’Connor on the Supreme Court bench before there could be a Ruth Bader Ginsburg. “O’Connor had made it easier for her,” Hirshman writes. She even seems to forgive O’Connor the failings she has spent many pages chronicling: “Sounding so conservative and framing her mildly pro-woman decisions time after time as protective of authority — employers, school administrators — she represented the farthest women could hope to go in light of the irresistible conservative resurgence of the late 20th and early 21st centuries.” O’Connor displayed “laser judgment about what the court — and the society — would digest at any particular moment.” Indeed, while Ruth Ginsburg’s voice has become ever more powerful, it is, in the main, the power of the passionate and unanswerable dissent.

“Each one was better off for the other being there,” Hirshman writes. And now there are three.

Linda Greenhouse teaches at Yale Law School. Her new book (with Michael J. Graetz), “The Burger Court and the Rise of the Judicial Right,” will be published next June.

A version of this review appears in print on September 20, 2015, on page BR1 of the Sunday Book Review with the headline: ‘Sisters in Law’.