Sisters in Law by Linda Hirshman

argued—something people are born with and which should not determine their fates. If she won that argument, the entire structure of discriminatory American law would buckle. Like the society at large and the Harvard Law Review , much of the American legal system was built on the assumption that women were different from men, and usually not in a good way. When the Supreme Court reporter Nina Totenberg saw Ginsburg’s brief in Reed , she was stunned to see the comparison between sex and race. She’d always thought the Fourteenth Amendment was for African Americans. So she shut herself in the little phone booth the Court provided for reporters and called the professor at Rutgers. Only after she got an hour-long lecture on Professor Ginsburg’s view of the deep similarities between the two examples of exclusion did she understand completely what the feminist intellectual was after. Ginsburg, Totenberg says, may not like the press, but she has always known how to use it.
    Ginsburg had another arrow in her quiver. The rising tide of opposition to the Equal Rights Amendment pending in the Senate reflected the culture’s ambivalence about equating sex equality with racial equality. Strictly speaking, Ginsburg did not need the Court to go that far. She could win just by getting the Supreme Court to say the law was so unjustified as to be irrational, the lowest standard that any legal distinction must meet. Any application of the Fourteenth Amendment to sex would be a move forward. She could try for the larger victory later.
    Reed v. Reed , challenging the Idaho law that automatically chose men over women to administer dead people’s estates, should be easy to win under this low standard, Ginsburg hoped. It was a weird moment in Court history. By the time of the argument in Reed v. Reed , the Court was down from nine to seven. Chief Justice Earl Warren, who gave his name to the Court that made the legal civil rights revolution, and the liberal Abe Fortas both left the Court in 1969, and were replaced by Warren Burger and Harry Blackmun. Right before Reed v. Reed , Hugo Black and John Marshall Harlan left. President Nixon was considering their replacements.
    Of the remaining seven, William O. Douglas, once the young Turk of the New Deal, could still be counted on to vote for an equality claim, as could William Brennan, the old Democratic pol and the premier theorist of the Warren Court, and Thurgood Marshall, the iconic leader of the racial civil rights movement. Since the Court was down to seven, technically, Sally Reed needed only one more vote. Chief Justice Warren Burger and Associate Justice Harry Blackmun, the leading edge of the Republican backlash against the Warren Court, were not invariably conservative. Eisenhower’s Potter Stewart and JFK’s appointee Byron White were considered centrist. Somewhere in those four, the ACLU thought it could harvest at least one vote. By 1971, it was unlikely that four members of the Court would rule that women, by virtue of their sex, were presumptively unfit to do the simple task of administering their dead sons’ estates.
    Looking at the Court to come, however, Ginsburg knew the justices and their likely successors would not find many other laws discriminating against women too silly and irrational to pass constitutional muster. Assumptions about the fundamental differences between the sexes were deep and broad. Nixon had taken office vowing to put an end to social experimentation under the guise of constitutional fiat. He was about to make two more appointments, for a record four appointments in one term. All the Women and the Law seminars in the world could not change the fact that given the Court’s present—and future—mind-set, most laws based on assumptions of sex differences would probably meet the low standard of mere rationality. Ginsburg had to find a way to jazz up the process of thinking about women’s equality far enough to