Equal Justice Under the Law : Ruth Bader Ginsberg: The Return of a Different Kind of Feminism

Tomorrow, the first Monday in October, when the U.S. Supreme Court convenes its 1993 term, Ruth Bader Ginsburg will take her seat as the second woman to serve on the court. Across the country, feminists will be cheering. Ironically, many of those celebrating her ascension have rejected her philosophy.

Ginsburg made her reputation as a feminist litigator, representing the Women’s Rights Project of the American Civil Liberties Union in dozens of cases before the court she now serves on. As an attorney, she represented men almost as frequently as women, arguing against rules that provided economic benefits to women at the expense of men.

Many cheering her today would not take such cases. As an attorney, Ginsburg stood foursquare against laws that provide special treatment for women. Many of today’s feminist lawyers have constructed elaborate justifications for precisely such special treatment. It is a measure of how far feminism has come that Ginsburg is the least controversial nominee to the Supreme Court in a decade; but it is also a measure of how far feminism has gone astray that Ginsburg’s approach is so casually rejected even by her own supporters. That’s unfortunate, because today it might work.

The sex-discrimination cases of the 1970s were brought on behalf of men almost as frequently as on behalf of women. Ginsburg argued that women should be required to pay alimony to their husbands; that military wives should not be entitled to dependency benefits on more favorable terms than military husbands, and that men must be allowed to collect “mothers’ ” benefits from the Social Security Administration. She argued that a Florida law providing tax benefits to widows either had to be extended to widowers or thrown out.

Her goal was not simply to open the world of work to women, but also to open the private world of family to men, and, in doing so, to free both men and women of the constraints that gender lines impose. Cases were brought not to get a better deal for one group or another, but to get rid of the stereotypes of women as needy and dependent, or of men as aggressive and independent with little interest in parenting.

Not everyone applauded these efforts, at least at the time. Many women who were staying home, and raising families, wondered why they were paying the price of neutral laws. Why should widows lose tax exemptions they needed, and military wives risk health benefits that weren’t available to them from private employers, just because these benefits weren’t given to men? The law might be paternalistic, but the beneficiaries were women. Why were feminists arguing for men rather than for women?

Still, there was no turning back. Today, it is difficult for my law students even to imagine what the world was like before Ginsburg and her colleagues changed it. These days, no one questions the decisions requiring equality in the military or in the Social Security system. For her role in these cases, Ginsburg is rightly treated as a hero.

But a great many women have come to question the underlying approach that held that equality means women are the same as men and must be treated the same. Ginsburg may be the founding mother of feminist lawyers, but a new generation has rejected her spirit--insisting that women are “different” from men, that the differences should be celebrated, that biology is destiny, that motherhood unites women and that the real challenge is to get a better deal for women. These women don’t bring cases on behalf of men.

At first glance, there’s enormous appeal to this. It offers a respite in the wars between the “women” at work and the “ladies” at home--we are united, as women and as mothers. It offers an answer to those who claimed that feminists, like most men, didn’t put enough value on what traditional women do. And it seems to conform to the real world. Why spend precious time arguing for parental leave (as old-line feminists insisted) when men don’t want it? Why not get the best deal you can on maternity leave, instead? Why give men equal rights to custody of their children, when so many just use them as bargaining chips in divorce fights against their less economically well-off wives? If you won’t let us be partners, let us work part-time.

But uniting women against men is ultimately as shortsighted as the struggle between women and ladies. It is a strategy of second best. What happens when you get back from maternity leave? What happens when the baby-sitter doesn’t show? What happens when they ask you to go to Cleveland at the last minute, or that if everybody else is working 70 hours, your 40 won’t cut it?

The problem with the equality model of the 1970s was that it accepted the male world as the norm and the boys’ rules that govern there as a given. Equality meant being the same as a man. If men worked 70 hours a week, so would women. If men traveled at a moment’s notice, so would we. If men played hardball, we’d play harder.

For many women, it just didn’t work. The foot soldiers of feminism in the first generation included many women who went to work believing they could have it all, only to discover, painfully, that changing gender without changing the rules produced lives that were half empty. The “men only” signs came down but the rules of the workplace did not change, and those rules left little room for people who wanted to be both workers and mothers.

Or fathers. That’s the good news in the 1990s. Men need a movement today because the boys’ rules they created aren’t working well for them, either. That’s why so many are beating drums in the forest. In the 1970s, when Ginsburg and her colleagues were urging men to explore the private world of family, most men just weren’t interested. They were stepping on to the career ladder. The few willing to step off tended be viewed, even by feminists, as wimps. Today, approaching middle age, those same men are discovering just how limited life is when you are what you do. And feminism, the modern version of Ginsburg’s creation, may be their answer.

The sexual asymmetry that kept men in the public world and women in the private world, that defined men by their work and put down women as just mothers, limited the ability of both men and women to be fully human.

Ginsburg and her colleagues took that system on with a vengeance. That’s why they represented men so often. Their feminism was humanism. They didn’t have all the answers. The boys’ rules too often went unchallenged. But the impulse was right. Today, with men taking a second look at their lives, and with women celebrating our successes and our children, we have the opportunity to finish the job they began: to rewrite the rules that limit the ability of women who are also mothers to work, and of men who are also workers to be fathers.

As a justice of the Supreme Court, Ginsburg will now be called on to decide a wide range of cases. Issues the court has already agreed to consider this term range from voting rights and apportionment to proper procedures in death-penalty cases to a rap group’s right to use copyrighted material in a profane parody. But they also include issues relating to the rights of women, and of men, where Ginsburg brings special expertise.

Among the cases sure to be watched closely is one testing the application of the federal racketeering statute, RICO, to the activities of anti-abortion groups, and another in which a male defendant in a paternity action is challenging the state’s right to use peremptory challenges to strike all the men from his jury. Ginsberg’s participation in these decisions may well make a decisive difference--just as her advocacy did in the 1970s.