59. RBG Picked the Perfect First Fight

How gender equality found its footing in constitutional law

Photo by Diego González on Unsplash

In the early 1970s, gender equality was suddenly in the air. Betty Friedan had cracked open the conversation with The Feminine Mystique. Congress had banned employment discrimination based on sex in Title VII of the Civil Rights Act (a late-night joke amendment that stuck), and President Nixon had signed an order extending affirmative action to women in federal contracting. The Equal Rights Amendment was flying through state legislatures.

But there was a gap. For nearly two hundred years, courts had waved gender discrimination through with the lightest touch: rational basis review. As long as lawmakers could point to any reason—“protecting women,” “promoting family stability”—the law stood. Women could be barred from certain jobs, excused from jury service “for their own good,” and treated as dependents while men were breadwinners. Judges nodded and said, “seems reasonable.”

Ruth Bader Ginsburg wanted to change that. But she knew that charging into the Supreme Court waving a feminist banner could backfire. She needed the right case and the right moment.

Reed v. Reed (1971): A Case Even the Court Couldn’t Ignore

She found it in Idaho, where Sally Reed, a grieving mother, just wanted to handle her late son’s estate. But the law denied her the chance. It didn’t matter who was better qualified; it simply gave preference to men.

This was strategic gold. No culture-war baggage. No abortion. No workplace quotas. Just an obviously arbitrary rule that insulted common sense and basic fairness. Ginsburg, then at the ACLU, crafted a brief that avoided ideological fireworks. She didn’t demand the Court treat women like racial minorities. She didn’t even mention strict scrutiny. Instead, she argued in familiar constitutional terms: fairness, equal protection, and the danger of arbitrary state action.

The Court went for it—unanimously. Chief Justice Warren Burger wrote:

“To give a mandatory preference to members of either sex over members of the other … is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause.”

On paper, the Court said it was still applying rational basis review. But in practice, it poked holes in the state’s justification (“administrative convenience”) instead of rubber-stamping it. This was something new: a willingness to look harder at gender classifications, even without officially changing the standard of review.

Reed didn’t just win Sally Reed her son’s estate. It marked the first time the Court struck down a law for sex discrimination. And it showed how powerful careful strategy could be: start with sympathetic facts, avoid polarizing arguments, and win over even an all-male Court.

Frontiero v. Richardson (1973): Swinging for the Fences

Two years later, the next big gender case arrived: Frontiero v. Richardson. Sharron Frontiero, a U.S. Air Force lieutenant, challenged a policy that automatically gave male service members housing and medical benefits for their wives but forced female service members to prove their husbands were financially dependent.

This time, the argument was bold: treat sex, like race, as a “suspect classification” requiring strict scrutiny. Justice Brennan’s plurality opinion embraced the logic of Footnote Four in Carolene Products, which says courts should be especially vigilant when laws burden politically powerless groups. Women, Brennan argued, had been historically excluded from political and economic power, even though they technically made up half the population.

But the Court fractured. Justice Powell (joined by Chief Justice Burger and Justice Blackmun) balked, saying, essentially: why leap ahead while the Equal Rights Amendment is still being debated in the states? Powell’s concurrence sent a clear signal: the Court was willing to strike down this particular policy, but not ready to revolutionize the constitutional standard.

The result: Frontiero struck the policy but left the big doctrinal question unresolved.

Why the Split?

Part of it was timing. In 1971, Reed’s facts were so stark and the ask so modest that the justices could say “yes” without reshaping constitutional law. By 1973, women’s equality was already on the national political stage, complete with the ERA passing state legislatures and Phyllis Schlafly mobilizing opposition. There was a sense that gender equality was working its way through the political process, so some justices hesitated to let courts jump ahead.

It was also about strategy. Ginsburg’s Reed brief stayed in safe, incremental territory. Frontiero’s argument reached for the doctrinal brass ring: strict scrutiny for all gender cases. That move exposed the Court’s limits: it wasn’t ready to say “sex = race” under the Constitution, at least not yet.

The Middle Ground: Craig v. Boren

A few years later, the Court landed in the middle with Craig v. Boren (1976), adopting intermediate scrutiny: gender classifications must serve “important governmental objectives” and be “substantially related” to achieving them. That standard reflected Reed’s skepticism of arbitrary rules without fully embracing Frontiero’s strict scrutiny.

Why It Still Matters

These cases are a master class in litigation strategy. Reed shows the value of choosing your first case carefully: picking a fight no one can defend and framing it in a way the Court is already primed to accept. Frontiero shows the limits of pushing too far, too fast—even with sympathetic facts.

And it’s a lesson that still resonates. Whether it’s gender equality, LGBTQ rights, or something else, movements often face the same question: Do you go incremental and build step by step, or swing for the fences and risk a fractured Court?

Ginsburg’s genius was knowing how to open the door without slamming it shut in the Court’s face.