Politics and the Limits of Law: A Musing for Dean Sullivan

Abstract

It is a tale of triumph, brilliantly told. I am a sucker for these stories, to be honest. I love hearing about Ruth Bader Ginsburg and her colleagues and how they devised the strategy that brought equal rights under law to women. Like Thurgood Marshall and Gideon's Trumpet,' these are the modem legends of the law that still lure high-minded idealists and innocent reformers to this profession of ours. Were there other approaches Justice Ginsburg and her colleagues might have taken? Theoretically, yes, as Dean Sullivan dazzlingly demonstrates. But the soul of this story is how much these women managed to accomplish with virtually nothing at all to begin with; how womanly they were; the triumph of making do. Phyllis Schlafly was right, ironically enough. We didn't need an Equal Rights Amendment. We got one, virtually identical to the one we proposed, through the decisions of the U.S. Supreme Court. We took the last minute addition of the word sex and turned it into federal law against both traditional and new forms of sex discrimination, including sexual harassment. We established a woman's right to choose, without which equality is unattainable. If more young women today don't call themselves feminists, it is at least in part a measure of how far we have come. But we still have so far to go. Many of my students graduate every year believing that they are free and equal. They come back to see me five years later, or ten or fifteen, feeling constrained and discriminated against. At the beginning, it is hard to see. Then you get to the middle, where motherhood is still destiny, where you're supposed to make partner during the same years you're supposed to have a family. If you try to do both at once, you're vulnerable to feeling like a failure at both, since neither the world of work nor the world of home has much accommodated to the fam-