Sunday, March 10, 2013

Jeff Toobin Got Ruth Bader Ginsburg Totally Wrong

In the March 11 issue of The New Yorker, Jeffrey Toobin pens a profile of Justice Ruth Bader Ginsburg, who is celebrating her 20th year on the Supreme Court this year. Though the piece (which he fleshed out in an interview with Fresh Air's Terry Gross this week) has some highlights—I defy you to read the note Ginsburg's husband wrote to her a week before his death without tearing up, and the descriptions of the 90-pound justice as a gym rat are priceless—Toobin utterly mischaracterized Ginsburg's years as a feminist litigator. He misses the point of her work entirely—and overlooks how revolutionary and paradigm-shifting that work truly was.

Toobin notes Ginsburg's first success in the Supreme Court, in the Reed v. Reed case. The Court invalidated a state law that said that, where a man and a woman are both qualified to serve as an executor of an estate, the man must always be preferred. After that, Toobin writes, Ginsburg "launched a series of cases targeting government rules that treated men and women differently."
The process was in keeping with Ginsburg's character: careful, step by step. Better, Ginsburg though, to attack these rules and policies one at a time than to risk asking the Court to outlaw all rules that treated men and women differently.
In the Fresh Air interview, Toobin elaborated
GROSS: You describe her approach in litigating women's rights as incremental, case by case as opposed to one sweeping case that would say women have to be treated equally in everything, and therefore a lot of laws will just have to be rewritten.
TOOBIN: That's right. And that's very significant, particularly when you start looking at her judicial career because Ginsburg is a methodical person, and she understood that the best way to win at the Supreme Court, or so she thought, and history proved her right, at least in her case, that you don't ask for too much.
He noted that Ginsburg "didn't ask the court to rule that all differences between the sexes, in terms of how they were treated under the law, were unconstitutional," a cautious approach he attributed to her view that "it's better to ask for narrow relief, ask for specific victories in specific cases rather than ask them to rewrite the law of sex and gender in the United States."

This is crazy. And a completely blinkered view of Ginsburg's enormous accomplishments in the 1970s. Ginsburg didn't bring a single unifying case asking the Court to declare that the Constitution requires exactly equal treatment between because that's not what she believed. It was not different treatment per se that Ginsburg fought against; it was the many legal codifications of stereotypes about gender norms that were unconstitutional, and in need of destruction.

Cary Franklin, a professor at the University of Texas Law School, has convincingly documented that the 70s-era feminist litigators were not driven by a desire for “formal equality” that would force women into men’s roles. Rather than forcing women into men’s world, Ginsburg strove to remake the social meaning of men’s and women’s roles altogether—or, at least, to ensure that the law could not cement those traditional notice of men’s and women’s place in society.

Ginsburg's cases thus sought to dismantle the legal codifications of stereotypical views of the roles that men and women should play in society—not to demand equal treatment in all things. So she brought the Reed to challenge the stereotypical view that men were more financially literate than women. And she brought the Wiesenfeld case, which Toobin also mentions, to challenge the stereotypical view that men have no business being stay-at-home parents. She brought Frontiero, a case about military spousal benefits, to challenge the stereotype that women were always dependent on their husbands, and that husbands were never dependent on their wives. And her brief in Craig v. Boren—a case about a law allowing 18-year old women but not men to buy some beer--argued that the law was premised on stereotypical views of what young men and young women "were like."

And these weren't just arguments Ginsburg was presenting to the Court. The Court, under Chief Justice Warren Burger, bought it. For example, if the Court were simply concerned about equal treatment, then it could have required both men and women to prove their dependence on their spouse to receive survivor benefits in Weisenfeld. Instead, it held that neither did—and that requiring husbands but not wives to do so was an unconstitutional codification of gender norms. Even if the assumption that men are more likely to be the primary earners had some statistical validity, the Court wrote, "such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support."

So when Toobin makes it seem like Ginsburg was just some practical-minded incrementalist, he fails to give her credit for the society-shaking, frankly revolutionary approach she was taking—and that she got the Burger Court to buy into: the idea that what was problematic was not unequal treatment per se, but rather unequal treatment that was premised on role-defining gender stereotypes.

Toobin is at his best when he provides behind-the-robes glimpses into the Court, whether it's Justice O'Connor's aerobics classes or Justice Souter's utter dismay at the Bush v. Gore decision. When it comes to legal analysis, though, he has trouble looking beyond conventional wisdom. It's frustrating that in writing about one of the giants of the feminist movement, he sells the towering Justice Ginsburg so short.

1 comment:

John Wulsin said...

I don't know much at all about Bader Ginsburg's career (so I can't weigh in on whether Toobin's account is accurate), but my non-legal reading (quite different from yours) of this article is that Toobin portrays Bader Ginsburg as being incredibly influential throughout her career. When he describes her method as "incremental, case-by-case", I hear that as a compliment to her record, not an attempt to diminish her accomplishments. For starters, the article's title is "Heavyweight." He then goes on to call her "by far the current Court's most accomplished litigator." Even when cases she supported weren't ratified (1982 Equal Rights Amendment, 2007 Lilly Ledbetter), the practical impact of her influence was felt: "The most important thing she did was persuade legislatures that they just couldn't write laws anymore that drew distinctions between men and women" and "Ginsburg's dramatic invitation to Congress to overturn her colleague's decision put the issue on the national agenda." What's interesting (according to Toobin) is how this contrasts with her personality and methodology - that she has had revolutionary impact while having a conservative (Burkean) approach. Perhaps that's not an accurate account, but I don't think Toobin is trying to minimize the historic importance of her work at all.