Editor’s note: I wrote this rather long piece more than a year and a half ago, when the Ruth Bader Ginsburg biopic On the Basis of Sex came out. I didn’t finish the post to my satisfaction, and I let it lie. Ginsburg’s passing prompts me to bring it out now. As you can see, I had a sliver of contact in my life with RBG, but also with a principal antagonist — later a supporter — in her education, life’s work, and judicial career.
This post is mostly not about her — and I hope it doesn’t seem like I’m taking attention away from her memory. In writing it, I came to have a better familiarity and appreciation for her work, and I hope it gives context. Rest in power, Justice Ginsburg — and may we all live up to your example in the ways we are capable.
Let us now praise famous women: You may have seen On the Basis of Sex, the biopic of Ruth Bader Ginsburg. It’s a good, watchable, informative film with a fair amount of legal substance to it — and a fair amount of Hollywood gloss. And perhaps you hissed at that crusty embodiment of sexism, mean old Harvard Law Dean and later Solicitor General Erwin Griswold.
By coincidence, I have a little bit of personal connection with both of these folks.
For 2+ years in the late 90’s, I worked for Ginsburg’s son Jim at Cedille Records, a small classical label in Chicago. I used to answer the phone in the very small office, so that meant fielding calls from family members. I have little interesting to say: In my impression, Marty was pretty much as portrayed, very warm and gracious, totally devoted to his wife and family. Jane was always friendly; Jim is a good guy, a visionary music producer, who puts out terrific stuff that expands the repertoire and wins Grammys. Ruth, on the rare occasions when she called, was efficient but cordial.
Also, Erwin Griswold was my great-uncle.
Erwin (1904-1994; “Uncle Bow” to us, don’t ask me why) was about as stubborn as portrayed in the movie, sometimes abrasive; also quite capable of graciousness; totally devoted to his polio-stricken wife. But in our experience he was not at all personally, aggressively sexist, as portrayed in the movie.
He was a real person, with complex thoughts, motivations, and prejudices; not a cartoon, not a Hollywood villain. That may not cut much ice with you; and perhaps it shouldn’t: History has clearly judged that he was on the wrong side of history in several cases. I’m not interested in defending him from that — although the more nuanced picture is, in my opinion, all the more interesting.
And since I’ve seen it in few other places, I’ll offer a qualified defense of his legacy. (A good place to start is his obituary in the New York Times.)
He was a defender of civil liberties during the McCarthy era (ie. when it counted the most); an influential Civil Rights advocate and member of JFK’s Civil Rights Commission, who prodded the president to use the powers he possessed to fight segregation; a persistent defender of affirmative action; he was alarmed by the conservative swing of the Supreme Court, and the rise of the hard right in general; thought dimly of “strict constructionism” and presciently predicted the threat of backsliding on civil rights, represented by Clarence Thomas et al.
In the movie, Erwin (or the character of “Erwin”) is made the mouthpiece for movement-misogynist tropes:
GRISWOLD For God’s sake! Where does it end? Gender equality as a civil right?!
GRISWOLD Ten years. Ten years I fought to enroll women at Harvard Law. The faculty, the university — even my wife warned me it could come back to haunt me. Now this is the thanks I get.
GRISWOLD Let’s put the idea of gender discrimination to bed once and for all.
(Etc. That meeting portrayed above never happened; it was fictionalized as a narrative convenience, which is understandable for a film, but again risks mischaracterizing his personal feelings.)
The real Erwin, in a 1963 letter to feminist lawyer Pauli Murray, expressed that he was “lukewarm” to the notion that gender classification should be given “strict scrutiny” under equal protection. That’s a rather different tone than that assigned to his movie persona.
She sent the memo to a range of interested parties, including Dean Griswold, who replied cordially but noncommittally. After praising her “excellent memorandum,” Griswold confessed that he found himself “rather lukewarm” about her equation of race and sex discrimination. “Somehow or other, it has always seemed to me that there are differences in sex, and that these differences may, in appropriate cases, be the basis of classification for legal purposes,” he wrote.
Other unflattering things in the movie are essentially accurate, but could use some context. The dinner party in which Erwin asked the women students, “How do you justify taking a spot from a qualified man?” was absolutely real. (The only thing the movie got wrong was that it was at Erwin’s Belmont home, not the Harvard Club.) The women were, of course, outraged, and the bitterness lingered for decades.
Even I knew about these dinners as family lore, and understood that Erwin was playing devil’s advocate; after all, he had pushed to bring women into the law school, “which took some doing“:
I used to tell the young women who came through here, patting myself on the back, that I was the Dean who brought about the admission of women to the Harvard Law School. But I soon learned their response was, “Well, why didn’t you do it sooner?,” and again I say it took some doing at the time and . . .Interview with Victoria L. Radd; Oral History Project, The Historical Society of the District of Columbia Circuit
Q: There was still some opposition to the admission of women at that time?
A: Yes. At our first meeting I would say one-third of the faculty was opposed to it, and that was too big an opposition to seek to force it through and so we laid it on the table, not to reject it but literally to consider it further.
(To be clear: Neither Erwin, nor Harvard Law deserve a medal for admitting women in 1950. After all, Yale Law had admitted women since 1920. This was obviously the way the world was going.)
The fact that he didn’t make himself clear to the other attendees — apparently ever — does not redound to his credit. He could and should have said something to this effect: “You will be questioned and challenged, but know that you have my complete support as equal members of this institution.” But that wouldn’t have been like him; he was always the law Dean-as-Inquisitor, prodding and challenging.*
Many years later he made this intent clear to Ginsburg. In her words:
One of the things Dean Griswold did—and I think it has been misunderstood—he had a dinner for the women in the first-year class. And he invited distinguished faculty members to be our companions. After dinner, we repaired to his living room, where chairs were set up in a semi-circle. The dean then asked each of us in turn to say what we were doing at the law school, occupying a seat that could be held by a man. Years later, Griswold told me he didn’t ask the question to be unkind. He said there were still doubting Thomases on the faculty who thought it was unwise to admit women. So the dean wanted to be armed with stories from the women themselves, about what use they would make of their legal education, so that he could satisfy his dubious colleagues.
In his own words, from his 1992 autobiography Ould Fields New Corne:
To my regret, I now find that these questions — though purely factual in intent — were resented, and that they are now recalled by some women graduates as examples of sexism on my part. That was really far from my intention. I was trying, if anything, to encourage the women to make full use of their legal training, in practice or in service, of varying kinds, to the public. Now it is more than forty years later, and I have seen a great many women lawyers, and I am enthusiastic about them. It is obvious, though, that they have a very difficult assignment, particularly during the childbearing years. They face this, and meet it with great determination, and very effectively. And they receive, in most cases, great help and cooperation from their husbands. I am proud of them. If to say that is sex-discrimination, I can only respond by saying that it is intended to be a sincere expression of appreciation and approval for some very remarkable lawyers who would not have entered the profession a couple of generations ago.
There’s another context to the accusations of sexism, which was the lack of follow-through in truly integrating women into the law school:
But [Judith Richards] Hope and the 14 other women who graduated with 498 men in the HLS Class of ’64 did have to sprint across campus to the bathroom. They also had to endure the now infamous “Ladies’ Days,” special days one professor set aside for grilling the women students on cases involving underwear and the like. They had to deal with men who refused to sit next to “girls” in class and a dean who made each woman justify her presence at HLS.
“Today, such antics would probably be actionable,” says Hope of the challenges women faced daily at Harvard, one of the last law schools in the country to admit women. “We didn’t have enough outrage in those days. We just felt so privileged to be at Harvard Law School.”
At Tuesday’s hearing, Ginsburg told of being shut out of Lamont library, which was closed to women when she was a student at Harvard Law School in 1956 to 1958. She said women guests were not invited to the Harvard Law Review banquet, and that women were not given space in the Law School dormitories.
And as is well known, the Law School refused to grant her a Harvard diploma when she moved to Columbia Law School for her final year to be with Marty. I don’t know what the rules were, or what accommodations were typical; today such a request would be granted.
In any event, even as Erwin brought women into the halls of Harvard Law, he certainly didn’t create a welcoming, egalitarian atmosphere; nor were they accommodated them in some pretty minimal ways. That much seems clear.
When he became Solicitor General in 1967 under Lyndon Johnson (following Thurgood Marshall), it was the culmination of a career ambition: To be the lawyer for the United States government. At the time this was a professional job, largely though not totally insulated from political pressure. (The position would become increasingly politicized, especially by Charles Fried in the Reagan administration.) Erwin was kept on for the Nixon administration. He ended up opposing Ginsburg in a number of cases, which included appealing the Moritz case to the Supreme Court. (Certiorari was not granted.) This involved printing up the famous list of cases — Appendix E, the “treasure trove” — that would provide Ginsburg with a list of discriminatory laws to pick off.
What motivated him? Was it a personal begrudging of the very notion of women’s equality? Professional duty to defend the government’s position, right or wrong? “Lukewarm” discomfort with the sweeping implications of lower court’s ruling? The government’s brief makes a de facto case for differential treatment by gender: That women tended to be caretakers, and make less money, and therefore ought to be eligible for special relief:
It is a matter of fact, whether the facts be regretted or applauded, that in the allocation of family responsibilities in our society, the responsibility for care of the home and of dependents is generally assumed by women, and the responsibility for earning the family livelihood has generally been assumed by men. Those facts form the basis for a great body of state and federal legislation making special provision for women when the need or responsibility for self-support or the support of dependents is thrust upon them by death, divorce, or otherwise. See Appendix E, infra, pp. 35-37. It is also a fact, regretted by most and reprehended by federal law, that the earning power of women has been, and continues to be, less than that of men, both in the 1950’s and today …
It is the function of any legislative body to legislature upon the basis of known or believed facts. When it does so, it does not legislate those facts into existence, or even approve of them. It may regret their existence, or be non-committal concerning them. But neither wisdom nor the Constitution requires Congress or any other legislative body to shut its eyes to facts, or to legislate only upon the basis of wished-for facts. The Constitution might well be offended if legislation required women, rather than men, to accept the burdens of home and dependent care, and to accept lower pay scales than men. But if, without legislation, women do generally accept those burdens of care and if, in fact, they suffer lower pay scales than men, it is difficult to believe that the Constitution prohibits the Congress from recognizing these facts and using them as a basis for classification in affording women and widowers a limited measure of tax relief.
Thankfully, this way of thinking has not carried the day. But one can discern Erwin’s sense that the Constitution is not applied abstractly, but to facts on the ground, in real life. He was no “strict constructionist” and seemed to find the notion absurd (see below re: affirmative action).
Regarding Appendix E: In his logical rigor surely he would know that the sheer quantity of laws would not alone be sufficient to refute that sex was a “suspect criterion”. The decision in Moritz, he wrote, “casts a cloud of unconstitutionality upon the many federal statutes listed in Appendix E.” In this, he would actually be in agreement with RBG: They both knew this was a big deal. Was this a “winnable case”, as his character says in the movie? In reality, James Bozarth, the Justice Department lawyer assigned to the case, thought it was a loser. And as it would turn out, in the succeeding Frontiero case, Ginsburg would win an incomplete but significant victory over the SG’s office. (Erwin offered Ginsburg a congratulatory handshake after arguments, which like some other humanizing elements, is in the screenplay but didn’t make the final cut.)
Thereafter Erwin had great respect for Ginsburg’s acumen and accomplishments, and helped to further her career. He was part of a committee that recommended Ginsburg for her first judgeship on United States Court of Appeals for the District of Columbia Circuit (where she served, incidentally, with Robert Bork and Antonin Scalia and was known as a moderate). He regarded her work as in league with that of Thurgood Marshall, for whom he had enduring respect and a working relationship. At an event commemorating the 50th anniversary of the Supreme Court building, Erwin said:
I think, for example, of the work done in the early days of the NAACP which was represented here by one of the country’s great lawyers, Charles Hamilton Houston; work which was carried on later with great ability by Thurgood Marshall. And I may mention the work done by lawyers representing groups interested in the rights of women of whom Ruth Bader Ginsburg was an outstanding example.
According to this breathless telling by Sidney Blumenthal for the New Yorker in 1993, it was Griswold’s regard that convinced Bill Clinton to nominate Ginsburg:
On June 12th, [Senator Daniel Patrick ] Moynihan relates. the White House legal counsel, Bernard Nussbaum, called him. “And he says, ‘What are you saying about Ruth Bader Ginsburg?’ I say, ‘Hmm, well, all I have is this statement, she’s a very fine attorney, she developed the theory of gender equality under the equal-protection clause.’ And then Nussbaum said, ‘I’m sorry , the Oval Office is buzzing, I’ve got to go in.’ And I said, ‘Hold it! Hold it! One minute! Erwin Griswold–dean of Har-vard Law School–said–on the fiftieth anniversary–the Supreme Court–building a new building–that–she–was–to–women’s rights–what–Thurgood Marshall–was–to–civil rights!’ ” The next night, at about midnight, Clinton woke Moynihan with a call requesting him to act as Ginsburg’s sponsor in the Senate. The following afternoon, the Senator sat in the front row in the Rose Garden as the President announced that Ginsburg was his nominee. Nussbaum took Moynihan aside to remind him of his Griswold reference and said “I walked into the Oval Office with that.” Moynihan said later, “And I thought, Well, if I had not kept Nussbaum for twelve seconds…”
In spite of this, the relationship between Erwin and RBG was never exactly warm — even after she was nominated. But it also was a lot more complicated than the movie presents. Insofar as fictionalized movie portrayals become unofficial “history” for many viewers, and the only image of Erwin they’ll ever have, I think that’s unfortunate.
As I said, Erwin deserves to be recognized as more than a foil to RBG. He was known as the Dean who doubled the size of the law school faculty, and in the words of a colleague:
He left the Law School with its traditions, as he saw them, largely intact but with countless innovations: a larger, more varied faculty, a curriculum of great variety, a student body far more representative in sex, class and race.
He was known as an antagonist of Joseph McCarthy during the years of the Red Scare, eventually in 1955 publishing a short book, “The 5th Amendment Today”. Even in this case, however, he had to be coaxed into getting to the right place. He did not support Jonathan and David Lubell, twin-brother Harvard Law students who had been targeted by McCarthy’s committee, leaving them subject to ostracism at HLS. (Nonetheless they went on to distinguished legal careers.)
I mentioned his lifelong support for civil rights, which dates back to his outrage as a child in being told by his teacher that the Fourteenth Amendment guarantee of equal protection simply was not followed. In his testimony in the Clarence Thomas hearings, he expressed a prescient warning of backsliding in civil rights. [I can’t get C-SPAN’s video embed to work — but do click the link. It’s worth watching, also to see a floundering Joe Biden.]
Now, with respect to affirmative action, we have, of course, a terrible history in this country. For more than 200 years, the white settlers here grievously victimized persons of African descent,whose descendants today are African-American citizens. Not only were they held in slavery, but they were denied education and all cultural advantages. It took a Civil War to ends this massively unjust regime. But then we had the period of share croppers and lynching and Jim Crow. Though the slaves were free, their opportunities were severely restricted by force of law. It was not until the middle of this century that we began to move ahead, and under the leadership of Lyndon B. Johnson, the Congress enacted a number of constructive statutes designed to provide a greater equality of opportunity.We should not forget that the 13th, 14th, and 15th amendments were adopted as a result of the Civil War. They were essentially focused on African-Americans. They were designed to pull African-Americans up to a position of equality. Everyone was protected by the due process clause, but the African-Americans needed it most. The same was true of the equal protection clause. As Justice Blackmun has so well said in his opinion in the Bakke case: “In order go get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.We cannot, we dare not, let the Equal Protection Clause perpetuate racial supremacy.”
Anyone who has lived through the past 50 years can see that we have made some progress. When I was a young man in the Department of Justice, now 60 years ago, it would have been inconceivable that the President would nominate a black man to the Supreme Court, or that the Senate would give serious consideration in such a case. There were then no black lawyers in the Department of Justice, no black FBI agents. We have made progress, but not enough. I hate to think that the progress we have made will come to a halt by a literalistic interpretation of the Civil War amendments, thus frustrating the accomplishment of what they were clearly intended to do.
Because of this, I am absolutely certain that he would have been horrified at the Roberts Court’s evisceration of the Voting Rights Act, and its chipping away at civil rights generally. Perhaps affirmative action is next to go.
[Now, as I write this 9/22/2020, Trump is set to nominate a replacement for Ginsburg who will be perfectly happy to upend all manner of her work, and his. It is an entire era of mainstream legal thought that has provided us with protections that we all take for granted: In civil rights; voting rights; workplace protections; environmental protections; health care. It is critical to understand how the right wing’s legal novelties — at which Erwin was aghast, and warned against in his lifetime — are radical and disruptive to daily life, not to mention the functioning of democratic government, and the ability of a population to govern itself. These stances are unpopular in the public, and pushed by a minoritarian party that seeks to cement power beyond the reach of democracy. Activist judges, indeed. It is time for fundamental, pro-democratic reform — which may include the previously unthinkable: Expanding the Court.]
*(Yes, he was like that with family too: My father fondly recalls winning an argument with Erwin over which building was on the nickel. As I said, Erwin was stubborn.)