Sally J. Kenney.1

Sally J. Kenney

Justice Ruth Bader Ginsburg considered one of her greatest legal victories as an advocate the U.S. Supreme Court's decision to strike down Louisiana’s exclusion of women from jury service in Taylor v. Louisiana. The 1975 case out of St. Tammany Parish, like better-known constitutional victories, championed the cause of a man.

An all-male Louisiana jury had convicted Billy Taylor of aggravated kidnapping and sentenced him to death. Although more than half of the population eligible for jury service were women, the pool contained only 10% because in Louisiana, you had to affirmatively sign up if you were a woman.

William McM. King of Covington represented Taylor. (Ginsburg had challenged Louisiana’s exclusion in Edwards v. Healy, and King and Ginsburg conferred as the Supreme Court set the two cases for a tandem argument. When the Court ruled for Taylor, it dismissed Healy as moot because Louisiana had eliminated its contested provision.) King argued that the first woman to serve on a capital case in Louisiana in 1948 had had a stronger sense of justice, fair play, and compassion than the men.

In 1961, a Florida woman, Gwendolyn Hoyt, had lost a parallel argument when an all-male jury convicted her of killing her husband. In Hoyt v. Florida, the Supreme Court had no trouble finding constitutionally permissible Florida’s requirement that men but not women serve on juries. After all, if women served on juries, who would make dinner?

Feminists wanted to end women’s exclusion from juries but divided over the justification: As rational citizens who are as capable as men of dispensing justice, did the exclusion deny women the equal protection of the law? Or because women are different from men, did litigants fail to receive a fair trial of a jury of their peers when only men served?

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Justice William Rehnquist had mocked as “mysticism” arguments that excluding women and African Americans from juries diminished the quality of justice or violated equal protection. His derisory attitude emerged in the questions he asked King at oral argument. He bloviated that where he came from, lawyers empaneling a jury relied on the “handy maxim” that men would be more sympathetic to women, and vice versa. Writing about the exchange later, Ginsburg skillfully turned the tables and exposed how ridiculous the invocation of “the handy maxim” was. Taylor was a man and, operating under Louisiana rules, his lawyer had little chance of drawing women jurors, she argued.

Audiotapes of oral argument were not readily available at that time, so only those in the courtroom would have heard Justice Rehnquist’s next incisive comment: “You won’t settle for putting Susan B. Anthony on the new dollar then?” Ginsburg wrote that the perfect retort would have been: “No, Your Honor, tokens will not do.”

When the Court overturned Hoyt v. Florida in Taylor v. Louisiana, it further diminished Rehnquist’s handy maxim that we can predict how one will think and behave simply on the basis of sex and strengthened the conviction that women’s quest for equality merited serious consideration. When I read Ginsburg’s scholarship some 45 years later, I heard vividly the sarcasm and derision she faced. Yet by pulling out the phrase “handy maxim” as she did, she displayed her wit and intellect and in so doing, lifted my spirits.

Ruth Bader Ginsburg did not get her ambition and confidence through societal support for her career path, but her vision for a gender-equal Constitution had precursors who helped clear the way and create a platform for her work. ACLU board member Dorothy Kenyon wrote an amicus brief in Hoyt v. Florida, the ACLU’s first in support of a sex discrimination case. Kenyon recruited to the board legal visionary Pauli Murray, who called for extending the doctrine of race discrimination to sex discrimination, calling it Jane Crow. Their combined legal acumen, strategy and dogged determination changed the Constitution and reduced how gender circumscribes our lives.

I remember the optimism when President Bill Clinton appointed Ginsburg to the Supreme Court in 1993 and she breezed through Senate confirmation. But the wall of White men were not dominoes, and the patriarchy stands. We are all too aware of how precarious our progress is.

Ginsburg’s intellect and wit packed a powerful punch. Although she was a frail tiny bird of a person, watching her doing her pushups and swinging her barbells, and reading her dissents from the bench, made us think this icon would be with us longer.

As we mourn the beacon extinguished, we celebrate the movement for equality she advanced. And here in Louisiana, our chief justice is an African American woman in a state that not very long ago would have excluded her from many things, including serving as a juror.

Sally J. Kenney is a professor of political science at Tulane University and executive director of the Newcomb Institute.

This column has been updated to reflect the following: A guest column by Sally J. Kenney incorrectly suggested that the late Ruth Bader Ginsburg argued a landmark case, Taylor v. Louisiana, in which the U.S. Supreme Court declared unconstitutional the state’s exclusion of women from mandatory jury service. Ginsburg argued a related case that was heard by the court on the same day, and consulted with the attorney on the Taylor case. Attorney William King of Covington successfully argued the Taylor case before the Supreme Court.