Sisters in Law by Linda Hirshman Page A

produce real results for future cases but not so far as to scare Stewart and White, the crucial two centrist old horses on the Supreme Court at the time. She needed a middle road between mere rationality and equating sex with race.
    If you look hard enough in the American legal system you can find precedent for almost anything. No one was a harder looker than Ruth Bader Ginsburg. As Ann Freedman, a coworker on the Reed brief, put it, she had an amazing “ability to zero in on the task at hand.”
    Working on the original Moritz appeal, the Ginsburgs had found F.S. Royster Guano v. Virginia , the fifty-year-old unfortunately titled “bird shit” case. In Royster Guano , the Court struck down a state law that taxed different kinds of corporations differently, saying the distinction in the law did not advance the state’s purpose enough to justify discriminating between mostly in-state and mostly out-of-state companies. Even in light of the states’ broad discretion in local tax matters, the Court said, a discriminatory law must at least fairly and substantially advance the legislature’s purpose in passing it. To a normal person, the difference between “rationally related to a legitimate state interest,” the conventional low standard for reviewing discrimination, and “fairly and substantially” advancing the interest, the Royster Guano standard, does not seem world-altering. And in the half century since the Court decided this obscure equal-protection case in 1920, it had played no role in the Court’s evolving equal protection jurisprudence. No one actually cared whether it was unconstitutional in 1920 for Virginia to favor Virginia corporations with entirely out-of-state business over corporations with only some out-of-state business.
    But in interpreting the Fourteenth Amendment of the United States Constitution, the difference between a law that is merely “rational” and one that must be “fair and substantial” creates an opening big enough to drive a legal revolution through. The ACLU brief in Reed offered the Court bird shit, aka an opportunity to look a little harder at lines between the sexes.
    With exquisitely careful legal analysis for the court and a working relationship with the Supreme Court press, Ginsburg was on her way. She did not argue Reed v. Reed ; that honor went to the Idaho lawyer who started it (the argument was, by all reports, a complete disaster). She merely spearheaded the ACLU’s brief, detailing the history of women’s suffering and invoking Royster Guano .
    The Court did not equate sex with race when it decided Reed v. Reed . But when the Supreme Court issued its unanimous opinion striking down the Idaho law that preferred men to women in November 1971, it carried the loaded language Ruth had excavatedfrom the avian fertilizer case. The days of assuming automatically that women were different from the standard citizen were over. From then on, the hundreds of remaining laws the movement had identified as preferring men—or women, as it turned out—would have to show a “fair and substantial” reason for distinguishing between them. The government could no longer assume for its convenience that women, the little darlings, would be too ditsy to administer estates—or anything else. Even the conservative Warren Burger signed on to that.
    Professor Ginsburg was about to start taking down those laws. There have been many female lawyers in America, a few before and many after Ruth Bader Ginsburg. And many of them have devoted themselves to the feminist legal movement or served, as Sandra Day O’Connor would, as incomparable role models, with stunning results. But the constitutional scholar Geoffrey Stone, who was clerking for Justice William Brennan when Ginsburg made her own first oral argument in the Supreme Court, calls her “simply the most important woman lawyer in the history of the