Book review: Linda Hirshman’s Sisters in Law
Much has been written about Sandra Day O’Connor, the first woman on the Supreme Court and a pivotal Justice on hot-button issues – including by O’Connor herself in not one but two memoirs. Ruth Bader Ginsburg, who in 1993 became the second woman on the Court, isn’t far behind her: although she has said that she has no intention of writing an autobiography, there are still several biographies of her already in print, with an authorized version and a movie starring Academy-Award winner Natalie Portman still to come.
With the publication of Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World, lawyer and philosopher Linda Hirshman takes on both O’Connor and Ginsburg, situating their respective ascents to the Court within the broader women’s rights movement. Hirshman’s book doesn’t break much new ground in reporting on the Court: the only Justice included in Hirshman’s list of interviews is retired Justice John Paul Stevens; and although she spoke with a number of their clerks, there is no indication that Hirshman spoke with any of the other Justices, including O’Connor and Ginsburg themselves. Instead, the book is more of an homage to O’Connor and Ginsburg – a lovely, thoughtful, and fascinating chronicle of their careers and lives that doubles as a concise history of the fight for equality for women.
The book is at its most compelling when it juxtaposes both women’s careers before joining the Court against the women’s rights movement more broadly. Although, as Hirshman is quick to point out, both O’Connor and Ginsburg in many ways led “relatively conventional lives” in the 1960s – O’Connor in a wealthy neighborhood in Phoenix and Ginsburg on New York’s Upper East Side – their decisions to pursue a career while married and raising a family were anything but. Even so, they were more pioneers than radicals: part of the Republican establishment in Arizona, O’Connor targeted laws discriminating against women from her position as a state senator there; Ginsburg – whom Hirshman describes as “committed to social change,” but “no Betty Friedan” – pursued that change through a meticulously crafted and executed legal strategy that sought to convince the nine men on the Supreme Court that laws which discriminated based on sex should be treated the same as laws which discriminated based on race.
Hirshman’s account of Ginsburg’s early career dominates the first part of the book. Although Ginsburg is largely now regarded as an icon for her work on the Court, her legal work before becoming a judge was an essential part of both her legacy and the women’s rights movement. Hirshman clearly thinks so: she compares Ginsburg to no less than Mozart and Jane Austen, with her observation that “Mozart had, by many accounts, five operatic masterpieces. Jane Austen’s reputation rests on five novels. . . . In five landmark cases over less than a decade, [Ginsburg] largely transformed the constitutional status of women in America.”
Hirshman clearly admires and respects O’Connor, but her praise is noticeably less effusive. She is critical, for example, of O’Connor’s role in Arizona’s failure to ratify the Equal Rights Amendment in the 1970s, observing that “O’Connor was caught between her ambitions in a conservative Republican Party and her professed concern for women’s rights. When asked, she sent a mealymouthed ‘on the other hand’ letter about how reasonable people could differ on the merits of the ERA.” Hirshman repeatedly describes O’Connor’s opinions on the Court as “tightfisted,” and she laments that, “[o]f all the hurdles the states thought up to discourage women in the years from her first abortion decision in 1983 to [Planned Parenthood v.] Casey, in 1992 . . . O’Connor went along with them all.” But in the end, she concedes that although O’Connor’s opinions may “look ungenerous,” they may have instead been strategic, reflecting O’Connor’s “laser judgment about what the Court—and society—would digest at any particular moment.” And even if O’Connor might not have been Hirshman’s own choice for the first female Justice, Hirshman acknowledges that O’Connor “was the only kind of woman who could have carried Ronald Reagan’s rash promise of a female justice all the way to the high court.” Once there, she continues, O’Connor had an impact “simply by being such an effective and respected female justice.”
Sisters in Law has enough detail and analysis to satisfy even the seasoned Supreme Court lawyer or reporter. But at the same time, another of its great strengths is that it is extremely accessible for non-lawyers as well. Hirshman’s narrative is conversational, bordering at times on the breezy. And she ably explains legal theory and cases without lapsing into lawyer-ese – describing, for example, not only what test Ginsburg was asking the Supreme Court to adopt to review laws that discriminate against women, but also why the choice of test mattered in the long run and why the case that she brought to the Court was a good one in which to do so.
Although Ginsburg in particular can do very little wrong in Hirshman’s eyes, Hirshman also takes care to acknowledge that her heroines, like the rest of us mere mortals, are not perfect. She notes, for example, that both O’Connor and Ginsburg “shared a capacity to take their revenge, cold.” Thus, after Justice William Brennan gratuitously insulted O’Connor in a dissent early in her tenure on the Court, Hirshman explains, “he found her mysteriously immune to his vaunted political charms, charms he used to get the five votes he needed on the nine-justice court. She never said anything. But he called his dissent ‘the worst mistake I ever made.’” And an ACLU attorney who failed to “respond enthusiastically to” Ginsburg’s offers to help out with an important women’s rights case found that Ginsburg, “by then one of four powerful ACLU general counsel, ‘didn’t say a word . . . to save him’” when he was later “ousted from his staff job as legal director in an internecine battle.”
The book’s narrative loses some steam after O’Connor’s 2006 departure from the Court. With the more conservative Justice Samuel Alito replacing O’Connor, Ginsburg found herself in a role that Hirshman describes as a “great dissenter” – registering her disagreement with the majority’s decisions in the Lilly Ledbetter gender-discrimination case, in the Burwell v. Hobby Lobby birth control mandate case, in the first iteration of the Fisher v. University of Texas at Austin affirmative action case, and in the Shelby County v. Holder challenge to a significant provision of the Voting Rights Act. Hirshman characterizes the dissents, and Ginsburg no doubt intended them, as planting “the seeds” to change the culture through “an agonizingly long process” that “depends in turn on the election of a president and a Senate inclined to seek appointments of a different mind-set.” To be sure, in the wake of Ginsburg’s 2007 dissent in the Ledbetter case, a later Congress did pass the Lilly Ledbetter Fair Pay Act. But given how small a role the Supreme Court normally plays in general elections (especially for Democrats), on the other issues Ginsburg could be putting “her dissent in a bottle and float[ing] it to an unknown Court to come” far in the future.
Hirshman never hides her own views, but the fierce criticism that she levels at some of the Roberts Court’s landmark decisions can be jarring, and it distracts (and detracts) from her narrative. To her, the Court’s 2012 decision in Fisher v. University of Texas at Austin wasn’t just wrong: it was “unprincipled,” and she equates the seven votes sending the case back to the lower court for further review with a “vote for obfuscation, professional misbehavior, and constitutional error” – notwithstanding that the result was (according to Joan Biskupic’s recent book on Justice Sonia Sotomayor) likely a compromise brokered by none other than Clinton appointee Justice Stephen Breyer (and joined by Sotomayor as well) to save affirmative action at the university. And the Court’s 2014 decision holding that the retail giant Hobby Lobby did not have to provide its female employees with health insurance that includes access to birth control because the family that owned the chain had religious objections to doing so was, according to Hirshman, not just incorrect but “stunningly anti-woman.” Like her heroines themselves, Hirshman’s book may not be perfect, but it’s still a great read.
Originally published on AmyLHowe.com.
Recommended Citation: Amy Howe, Book review: Linda Hirshman’s Sisters in Law, SCOTUSblog (Sep. 22, 2015, 10:00 AM), http://www.scotusblog.com/2015/09/book-review-linda-hirshmans-sisters-in-law/