Tuesday, February 26, 2019

"On the Basis of Sex" (and Tax)

by Neil H. Buchanan

[Note to readers: Yesterday, Verdict published the third of a recent flurry of my columns: "The Democracy Conundrum: What If Large Numbers of Voters Are Racists? (The Trump/Brexit Tragedies)."  I might write a followup column on that theme here on Dorf on Law soon.  Today's column below is unrelated, but hopefully still interesting.]

Although we here at Dorf on Law feel free to pepper our writing with references to movies and other bits of pop culture, we typically do not write movie reviews.  Having just seen "On the Basis of Sex," the Hollywood treatment of key points in the life of the young Ruth Bader Ginsburg, I will mostly avoid the temptation simply to review the film, instead using it as a vehicle to make some larger points about law and society.  (Professor Dorf's excellent analysis in 2015 of Clint Eastwood's "Gran Torino" is a particularly good example of a discussion that is more than a film review, which I encourage readers to take the time to click and read.)

I actually have already discussed "On the Basis of Sex" (which I will somewhat awkwardly refer to here as OBOS) in a recent column, where I discussed the relatively late arrival of coeducation at the University of Cambridge, even compared to the snail's pace at which at least de jure sex equality had finally arrived at the elite reaches of American colleges and universities.   Having only seen the trailer for OBOS at that point, I used the film (and Ginsburg's graduation from law school in 1959) as a historical marker indicating how dramatically the terrain of women's rights changed in an astonishingly short time.  When Cambridge finally came around in 1979, only twenty years after Ginsburg's graduation (and ten years after schools like Vassar and Yale had co-educated), it was already an embarrassing anachronism.

Before I get into the central topic of this column, I should say two things about the movie as a movie.  First, I loved it.  Second, it is a very Hollywood-style movie, complete with soaring (and deliberately emotionally manipulative) music and extreme dramatization.  It is worth seeing, but it is not a great film.  No matter what one thinks about the Academy Awards (and the blowback against this year's Best Picture, "Green Book," for being little more than "Driving Miss Daisy 2" seems well-placed, especially given that "BlacKkKlansman" was the best movie that I saw last year), the lack of Oscar nominations for OBOS is completely understandable.  It is good, but not all that good.

That is a more tepid recommendation than I had intended, but there you have it.  Even so, the movie is important in other ways.

The movie tells only a part of Ginsburg's life story (apparently quite faithfully).  I have to admit that I was geeking out throughout the film, for a number of reasons, many of them personal.  The universities that are relevant to the movie -- Harvard, Columbia, and Rutgers -- are all places where I have studied and/or taught.  Indeed, Rutgers-Newark gave me my first job as a law professor.   Awkwardly, OBOS makes it clear that Ginsburg's teaching position at Rutgers was a disappointment to her, because she was being locked out of all of the jobs at BigLaw firms in New York City for which she was more than qualified.

The key oral argument that is the climax of the movie is not in the Supreme Court but in the Tenth Circuit, which happens to be where I clerked.  The presiding judge on that panel, the late William Judson Holloway, Jr., had taken senior status by the time I clerked for his successor (Robert Harlan Henry) , but I did have the good fortune to meet Judge Holloway, who was a truly warm and caring man and a great jurist.  (I still remember sitting in his office -- again, I was not even his clerk -- and receiving guidance about issues large and small, trying not to be distracted by the autographed photograph of Franklin Delano Roosevelt on Holloway's bookshelf.)

And it gets even better from there -- but no longer only in the personal geek-out sense but also in  putting the movie into a broader legal and social perspective.  The case around which the movie revolves is Ginsburg's breakthrough win in Moritz v. Commissioner.  Although the movie (correctly) portrays Ginsburg's victory as a key moment in forcing the U.S. legal system to end de jure sex discrimination, Moritz is A TAX CASE!  This makes sense, because Ginsburg's late husband, Martin Ginsburg, was one of the best tax lawyers and scholars of all time.  Indeed, he is the one who first shows his wife the lower court's decision in Moritz and convinces her that it is the perfect vehicle for a challenge to a law that openly discriminated against men (actually, only against never-married men).

Although it quite accurately shows how people feel about tax cases (boring!), the movie also includes a scene in which Martin Ginsburg holds forth at a cocktail party about the social relevance of tax law.  He tells a story about post-WWII Sweden, where the government was forced several times to change a tax rule that treated married and divorced couples differently.  (Swedes kept evading the law by strategically changing their marital status and living arrangements, including adding separate doors to their homes to satisfy a rule that couples live "separately" in order to receive a tax benefit.)

Martin Ginsburg is played in the movie by Armie Hammer, who is probably best known as the actor who portrayed both Winklevoss twins (the Winklevi) in "The Social Network."  My job as a tax professor has just been made immeasurably easier, because we now have a Hollywood-handsome leading man expounding on the universal importance -- and inherently interesting implications -- of tax law.  I used to try to do that on my own, but now I (surely along with every other tax law professor in the world) will henceforth simply show the clip of Hammer charismatically explaining why what we do is fascinating.

And of course the point is that Ruth Bader Ginsburg understood how to use the small opening provided by that case -- which, after all, was about discrimination against men, and a small category of men at that -- to pull the law's treatment of women out of the dark ages.  Everyone (except her husband) tells her to give up.  Her former tormentor at Harvard -- Erwin Griswold, the legendary former dean of Harvard Law School, played with perfectly smarmy arrogance by Sam Waterston -- was at that point the Solicitor General who tried to bully her into dropping the case.  To borrow from a later moment of feminist lore: Nevertheless, she persisted.

It was striking that Griswold's team thought it a brilliant strategy to compile a list of the scores and scores of openly sex-discriminatory laws that a win for Ginsburg would bring into question.  (That it took a Defense Department super-computer to search the U.S. Code is a nice historical touch.)  Their argument, put bluntly during oral argument -- and which gave Ginsburg the rhetorical hook for her rebuttal -- was that Ginsburg was trying to create "radical social change."  Well, yeah!

This idea that the courts should avoid reaching the correct decision because doing so will cause too many collateral consequences is, of course, often a winner.  There is a reason that lawyers talk about a "parade of horribles," which allows an advocate to say, "Oh my God, your honors, think of what could happen!"  But for Ginsburg, the truly horrible thing was what those all of those laws represented, which was nothing less than the subjugation of women.  Looking through the list, she and her students at Rutgers were amazed.  Women could not apply for a credit card in their own names, hold various jobs, and so on -- not as a de facto matter, but by the explicit terms of duly-enacted statutes.  All of those laws obviously violated equal protection.

The strategy of compiling lists of statutes backfired on Griswold and his ilk, and it is interesting that the same strategy was useful for the winning side in the subsequent struggle for same-sex marriage (which Ginsburg herself helped to usher in as a Supreme Court Justice).  The late Antonin Scalia provided his own parades of horribles in cases like Romer v. Evans and U.S. v. Windsor (another tax case!), but the cause of marriage equality was most effectively advanced (in my opinion) when people saw a collection of all of the ways in which the law used to provide rights to married people only.

When the issue of same-sex marriage first became a flashpoint in the U.S., it was a fairly standard move for people like me (heterosexual and, at that time, unmarried) to sarcastically say, "Why should gay people want to get married?  It's a dying institution, and probably rightly so, given its historical importance in reinforcing inequality."  But when activists started to publicize that list of legal rights that married people take for granted, we could not help but say, for example, "Wait a minute.  A lifelong male partner of a man -- a husband in every sense, but not recognized under current law -- cannot even be treated as family when the love of his life is hospitalized?  That's clearly wrong."

This is was trailblazers do.  Ginsburg helped "radical social change" happen, because it was finally time for it to happen but needed people like her to make it so.  Sexism was so entrenched in the era depicted in the movie that the racist opponents of the Civil Rights Act of 1964 thought that they could derail the legislation by adding "sex" to the list of prohibited discriminatory classifications (along with race, color, religion, and national origin).  Those opponents saw their strategy blow up in their collective faces, just as Griswold's would a few years later.

Today, Donald Trump (yes, his name has to come up in every discussion these days) and the Republican Party are hoping to make "radical socialism" the bogeyman that will scare voters into thinking that Democrats cannot be trusted.  So far, it appears that voters are unimpressed.  As The Washington Post's Paul Waldman put it: "Trump wants to run against socialism. That’s great for socialism."  Younger voters, as many commentators have noted, seem particularly open to the idea that, if socialism means getting out of college with less (or no) debt and being able to find jobs with decent health care and other benefits, then socialism sounds pretty good.

That is not to say, of course, that playing to people's fears of change never works.  Sadly, it might be enough to allow Trump to pull off another surprise win next year.  Indeed, the probable success of a "Socialism ... eek!!" campaign strategy is the reason that I have argued that Bernie Sanders would have lost to Trump in 2016, had Sanders been the Democratic nominee.  On the other hand, if current pundits are right that Sanders missed his moment in 2016, it also seems likely that 2020 will be a very different year for those who gleefully resort to red-baiting, no matter whom the Democrats nominate.

In any case, "On the Basis of Sex" provides an entertaining way to see how one pioneering legal mind overcame the presumption that the United States is never ready for "too much" change.


Joe said...

I liked the film less though overall it is worth seeing.

"The movie tells only a part of Ginsburg's life story (apparently quite faithfully)."

Parts of it. It skips over her clerkship. It ignores her research of Scandinavian law (this makes the cocktail scene seem off -- RBG really should be giving that speech or at the very least comment in a way to show her special expertise) and per a new biography at least she actually did get a job at a law firm. She delayed it to go overseas to research Swedish civil procedure and then decided that she rather go into academia.

The facts of the litigation was changed some too, including the (non-existent) final rebuttal. She didn't flub the early part of the argument. The ACLU guy wasn't as much of an asshole about her abilities. In fact, overall, I thought the film (for dramatic reasons perhaps) to an annoying degree made RBG more put upon and unsure of herself than reality warranted.

I liked that we got a sense of the young RBG (we know her as an elderly grandmother type now and earlier as a studious middle age activist/judge, but she was seen as quite something in her younger days -- smart, beautiful, vivacious etc.) and the actress who played her daughter was very good. Nice to see some legal giants get a bit of air time as well. And, the film did a nice job showing how changing times result in changing law.

But, though Jennifer Hudson did perform the Oscar nominated song on Sunday, I think the film was flawed as a whole & had too much of a feel of a Lifetime movie.


RBG was involved in the briefing of Reed v. Reed, the Supreme Court opinion that started the ball rolling in regard to sex discrimination. The tax case here was handed down afterwards. By then, Congress changed the rule, but not retroactively.

Shag from Brookline said...

Neil's review doesn't specifically refer to the ERA and that it was not ratified. Perhaps OBOS does. The 2020 campaigns should raise the issue of the need to ratify the ERA.

My exposure to Dean Griswold came in the '60s and '70s and '80s when he chaired/presided at Federal Tax Institute of New England tax seminars in Boston following major tax bills that had been enacted. Over time, female panelists started to appear. And over time, more and more females would attend these seminars as they were finding niches in practicing tax law, particularly the more complex areas such as ERISA that many males wished to avoid.

Joe said...

The fight over the passage of the ERA basically occurs after the events of the film though it might have been touched upon. Over at Balkanization Blog, it was noted that the ERA might still be ratified though I personally don't think the final states should be counted since the original nomination process ran out and was so long ago.

RBG later on said that though the Supreme Court went pretty far toward what the ERA protects (though to be clear, over four decades, one difference from having a clear text specifically addressing sex), she would still like it to pass, largely for symbolic reasons. A district court recently held the male only draft is unconstitutional.

I question the value of the ERA at this late date; I also like free speech, due process, cruel and unusual punishment & equality to have one basic rule, not by category. In fact, a general right to vote would be appreciated. I get the idea though it would be hard for a 2020 Democratic candidate to be against the passage of the ERA.

Shag from Brookline said...

The ERA would seem to require a re-start, from scratch, because of the lapse of the time limit imposed for ratification Relying on Court decision is not the same as an amendment, as the Court may change earlier decisions, including via efforts by originalists, even faux originalists, on and off the Court. Perhaps with more and more women in elective offices, males night eventually need the protection of the ERA. Ratifying the ERA is more than a constitutional bookkeeping entry. How late a date is the ERA other than the time limitation on its ratification, considering how long white male domination prevailed under the Constitution?

Joe said...

Shag reads Balkanization so is probably aware that I agree with the "require a re-start" though the professor over there promoted the idea it was an open-question.

It is true that precedent can change and this is one reason we have a 16th Amendment even though many at the time thought the (by then rather limited) decision striking down a type of income tax (not all income tax) by a 5-4 opinion could simply be overruled. See also, the 14A overturning Dred Scott.

Still, the changing law and societal norms in the last four decades make it hard to imagine that much reversion here. One issue with a ratification decades after proposal raise originalist questions. Just what would the ERA cover? Would it cover sexual orientation? Would the Supreme Court approaching that issue mostly by another track (when some wanted them to deem it a matter of sexual discrimination) matter?

I'm not an originalist, but ratification so long after proposal is problematic in part since just what is being ratified changed so much. Perhaps, not being an originalist means that doens't matter. But, it concerns me.

Shag from Brookline said...

I'm not an originalist either. If there were a restart of the ERA from scratch, perhaps it could be refined to address criticisms. If such were accomplished and ratification resulted, originalism would look at the original meaning as of such ratification. Query: Can corpus linguistics inform us of current original meanings contemporaneously with the the ratification of such an amendment or the enactment of a statute, or do we have to wait until the lapse of many decades before corpus linguistics can serve as a purportedly objective of original public meaning?

When Brown v. Bd. of Educ. came down in 1954, unanimously, there was a major constitutional scholar who quickly claimed the decision was not constitutional; he was an early originalist. As time went on, originalism seemed to support Brown. Over time, including the civil rights movement and the mid 1960s Civil Rights Acts, protests of Brown continued. But eventually very few directly challenged Brown. But with Trump's candidacy and presidency, there are signs that issues of race have significantly resurfaced. (There's a new book - "Separate" - about Plessy described at recent post at the Legal History Blog. I haven't read it as yet, and may not be able to do so.) Might we expect s shifting originalism that will resurface criticism of Brown and its progeny? I read yesterday Thomas Edsall's NYTimes column on race and its role in further political polarization with Trumpism. This despite the Civil War As. But at least there are As to the Constitution that address race, equality, etc. But there is no A that provides such complete addressing of gender. Can we rely upon the Court as originalism continues to evolve?