Originally published on Forbes.com.
Ruth Bader Ginsburg using the output of a Pentagon computer meant to frustrate her fight for gender equity as a blueprint for the future struggle is kind of the nerd heaven part of On The Basis of Sex. It breaks my heart to disappoint you, but it probably didn’t happen at all.
The famous ‘Appendix E’ appears conventionally printed in the package I finally got from Amazon and the best evidence is that there was no Pentagon involvement in its production and my own admittedly speculative conclusion is that there was either no computer involved at all or a lot of human effort after the computer was done.
About On the Basis of Sex
I have been lavishing attention on On The Basis of Sex, because it is a legal drama about a Tax Court decision(Charles E. Moritz 55 TC 113), which involved about three hundred bucks in tax. I doubt that that will ever happen again.
Of course, the film is mainly a biopic of Ruth Bader Ginsburg, with the screenplay done by her admiring nephew, Daniel Stiepleman. In that context, we can’t criticize him, as a screenwriter, for some liberties with the facts taken for dramatic purposes. Remember the film is “inspired by a true story”.
When I contacted him about some of the “real to reel” transformations that I picked up from speaking with James Bozarth, the only surviving government attorney portrayed in the film, he graciously responded.
There was one point that I questioned on which he was quite certain – the use of a Pentagon computer to create “Appendix E”, a list of elements of the United States Code, that might be affected by the 10th Circuit overturning the Tax Court decision in the case.
A Lovely Scene
In the film, Bozarth, the young whippersnapper of the government team has the idea of using a Pentagon computer for the project and asks Solicitor General Erwin Griswold for an introduction to the Secretary of Defense. What follows is perhaps my favorite scene in the whole film.
We see Bozarth with Ernie Brown, who worked at DOJ for decades after retiring from Harvard in his sixties, watching a marvel behind glass – the spinning tape drives that were the early seventies symbol of high tech.
The dialogue goes:
BROWN And this computer will find what we’re looking for? BOZARTH In just a few days. BROWN Without any human being actually reading the laws. … What a horrifying age.
They neglected one detail that would have perfectly evoked the era – a soldier with the rank insignia of a Spec 7 on his sleeve. (The rank was eliminated in 1978). When Sergeant Daley, possibly the most colorful member of the Xavier High School faculty in his day, explained the Army rank structure to our JROTC class, he struggled for an example of someone with a very high specialist rank and finally hit on somebody who programmed a computer at the Pentagon.
Didn’t Happen That Way
James Bozarth has probably still not seem the film, but he did look at the copy of the script I sent him a link to. He never met with Griswold and knows nothing about any sort of computer being used as opposed to having come up with the idea himself.
Mr. Stiepleman is holding strong with the Pentagon story while acknowledging that Bozarth had nothing to do with it.
Regarding the Pentagon computer, however, that did happen — except for the timing. The Pentagon computer-generated list of laws (“Appendix E”) was created at Erwin Griswold’s behest when he tried to appeal the 10th Circuit’s Moritz decision to the Supreme Court, warning that it would “cast a cloud of unconstitutionality” over a great number of federal laws.
To quote from The Smithsonian’s very good article about how the Moritz case went down:
Moritz also, unexpectedly, gave her a blueprint for the lawsuits the WRP would use to incrementally strengthen the legal case against gender-based discrimination. When the Ginsburgs won Moritz, the solicitor general, none other than Ruth’s former Harvard Law School dean Erwin Griswold (who’d not allowed Ginsburg to receive a Harvard Law degree when she’d transferred to Columbia) unsuccessfully petitioned the Supreme Court to take the case. Griswold pointed out that the Moritz ruling put hundreds of statutes on unsteady legal footing—and he attached a computer-generated list, enumerating the laws in question. (Personal computers wouldn’t become available until the late 1970s, so Griswold’s staff would had to have visited the Department of Defense to make it.) In Ginsburg’s words, “It was a treasure trove.”
Here is what I believe is the source of the certainty about the use of a Pentagon computer. In Jane Sherron de Hart’s Ruth Bader Ginsburg: A Life, RBG, we read:
….Appendix E containing all of the provisions of the U.S. Code that differentiated on the basis of sex – a monumental accomplishment, because there were no computers in law offices at the time. The only way the solicitor general could have generated his list, the Ginsburgs concluded, was by using computers at the Department of Defense DOD.
In other words, the reason it is believed that a Pentagon computer was used is that is what the Ginsburgs concluded.
What was that conclusion based on? Well if they thought that there were no computers in law offices, I guess there were none in any they were familiar with. So I wonder if the conclusion was based on Marty Ginsburg’s experience as an artillery officer – in the mid-fifties.
If you read, as you should, Grace Hopper Admiral of the Cyber Sea by Kathleen Broome Williams, you’ll learn about a woman who is at the same level of amazing as RBG, who helped make the modern world. More to the point here you will learn that the military took the lead in introducing the current age of computing with machines that were focused on military problems – among them firing tables.
But That Was Not Then
The Moritz case went up to the Supreme Court in 1973, not 1944, and even though Bill Gates had not even become a college dropout, computers had come a long way from the Mark I, that Lieutenant JG Hopper had worked on, in no small part because of her later work. So I figure there might have been something capable of handling Appendix E.
I reached out to my high school classmate John Sundman, author of high tech thrillers like Biodigital: A Novel of Technopotheosis. John had a career in tech, before embarking on his writing career. He surveyed some industry veterans who are even older than we are (And we are older than Bill Gates – slightly).
There was a lot of interesting information but the most germane was a Lexis Nexis timeline, which notes way back in 1962.
John Horty at Health Law Center, University of Pittsburgh, develops a full-text legal information retrieval system.
There’s more, but the bottom line is that Pentagon involvement was hardly necessary and probably not the first place you would look.
Was There Any Computer Involvement?
I have to leave that question open, but I lean towards there not being any computer involvement in the production of Appendix E and most certainly not something that came off the line printer that did not require lawyers to do any further work. On that point, I will go with one section that I have practically memorized, prior to its amendment by TCJA -26 USC 1031 which included –
(e) Exchanges of livestock of different sexes. For purposes of this section, livestock of different sexes are not property of a like kind.
An early seventies vintage computer with no further human aid would probably have put that on the list.
A more reasonable way to compile the list might have been to poll experts on each of the sections. I suspect that there are people in back rooms with limited social skills who are cherished because they have practically memorized their section of the Code.
The Primary Evidence
At any rate, when it comes to primary evidence I have James Bozarth who is portrayed as having come up with the idea, who indicates he never heard anything about it. And I have added to that. Richard Stone is listed as one of the attorneys on the brief going up to the Supreme Court. He wrote to me:
Sorry to disappoint, but a draft of the cert petition came to me in a neat package from the Tax Division. My job was to recommend to The S.G. Whether or not to file and to rewrite the draft. I would not have been involved in the gathering of information and have no recollection of the computer use.
That does not nail it, but I think that if Appendix E had represented a technological watershed like the breaking of Enigma, there would have been some scuttlebutt about it.
Nothing To See Here?
I think what motivated me the most to not just drop this story is the comment in the Smithsonian article cited above-
Personal computers wouldn’t become available until the late 1970s, so Griswold’s staff would had to have visited the Department of Defense to make it.
There is about 35 years of technological history glossed over in that remark. Computers didn’t leap from the Department of Defense to your desktop. It took a generation and it happens that it was my generation.