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The Supreme Court's Champion of Women's Rights Who Refused to Hire Women

Posted: 11/09/10 11:00 AM ET

When Elena Kagan joined the Supreme Court this year, it marked the first time in the nation's history that three women have served together as justices at the same time.

It wasn't so long ago that the presence of women at the Court made some of the Brethren very uncomfortable. One justice who proved particularly resistant -- William J. Brennan Jr. -- also happened to be the one writing many of the Court's most important gender equality decisions at the time.

In Justice Brennan: Liberal Champion, my co-author Steve Wermiel and I reveal how Brennan privately confided in the 1960s that he would consider resigning should a woman ever be appointed to the Court. Ironically, this was one of the rare areas of agreement between Brennan and Chief Justice Warren Burger, who warned President Nixon that he might resign should a woman join the Court.

He also twice refused to hire female clerks in the 1970s. The second time came soon after he wrote a landmark opinion in the Frontiero v. Richardson case condemning "'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage."

After the second rejection, Stephen Barnett, his former clerk who recommended both women, wrote Brennan a letter warning, "your blanket refusal to accept a woman clerk is not just 'sexist,' and not just contrary to government policy; it seems to me that it is literally unconstitutional, under the decisions" he had joined or written himself.

Barnett, who was then teaching at the University of California, Berkeley, predicted that "it is only a matter of time" before someone brought a lawsuit against a Supreme Court justice alleging discrimination in clerk selection. "You would be a prime target for such an attack," Barnett warned before adding that, if subpoenaed, he would have to tell the truth.

Brennan finally relented after reading that letter and agreed to hire his first female clerk, Marsha Berzon, who is now a judge on the U.S. Court of Appeals for the 9th Circuit.

It isn't easy to explain the profound disconnect between Brennan's judicial opinions and his attitude toward women inside his chambers, although it was hardly the only example of him adopting positions contrary to his personal views.

No one infuriated this champion of press freedoms more than reporters. He personally opposed abortion but signed onto Roe v. Wade after helping lay the groundwork for it in prior privacy decisions.

Brennan was a product of another era in which men did not have women as professional colleagues. He found it easier to change the law than to adjust his own attitudes. He liked to joke -- sometimes crassly -- with his friends and fellow judges, and simply felt more comfortable around men. He did not feel he could have the same relaxed rapport with a female clerk or colleague and worried about sullying their ears with curse words.

No one understood Brennan's reluctance better than Ruth Bader Ginsburg, who had argued many of the women's rights cases before the Court on behalf of the ACLU's Women's Rights Project.

"He was a man brought up in a certain age," Ginsburg said during an interview in her chambers. It reminded Ginsburg of her own experience after law school when so few judges wanted to hire her as a clerk. Brennan, like so many men of his generation, "had to wake up."

Brennan took longer to wake up than many of his colleagues. Between 1973 and 1980, 34 women served as Supreme Court clerks. Brennan employed just one of them. However smoothly Berzon's clerkship might have gone, another seven years would pass before he hired another female clerk.

Brennan later blamed that on a lack of female candidates being recommended to him. "Believe me, it ain't for gender discrimination reasons," Brennan said in one of the 60 hours of interviews he conducted with my co-author.

Ginsburg never held Brennan's difficulty adjusting to women in his chambers against him. When she wrote a landmark gender-discrimination decision of her own in 1996, Ginsburg delivered a signed copy of her bench announcement to the chambers of Brennan, who had retired six years earlier.

"Dear Bill, See how the light you shed has spread! With appreciation, Ruth," she wrote on the first page. As she handed it to Brennan, she said, "Without you this would not have been possible."