Because of sexism, he is headed to partnership in a top firm, while she is teaching the next generation, who will actually do something to change things.

Well, there you have it.  If I had produced the film it would have been half an hour shorter and cost several million dollars less (Ditching all the fifties wardrobe, by itself would have been a big savings).  For what it is worth Caroline Siede. an actual film critic seems to agree – After a clumsy opening statement, RBG biopic On The Basis Of Sex effectively argues its case

When it comes to the new biopic On The Basis Of Sex, improving the viewing experience could be simple: Just skip the first 30 minutes….

On The Basis Of Sex is ultimately less about one woman blazing a trail for herself and more about the slow, pointed deconstruction of an entire sexist social order.

If they needed the Harvard stuff, there is also a subtle piece of feminist history that it might have been good to work in.  The movement of women into the professions was not a matter of linear incremental progress.  When RBG started at Harvard, things were actually going backwards, as Betty Friedan chronicled in the Feminine Mystique.  It’s also annoying that being at Harvard and all, that they did not work in a Margaret Fuller reference, but that’s probably just me.

Skip The Sixties

There is no Betty Friedan, because we skip straight to 1970.  Professor Ginsburg is making her way through a demonstration to teach her class on sex discrimination. Rather than rows and rows of young white men in suits, there is a diverse group of students sitting around a table as they discuss Hoyt v Florida and Dorothy Kenyon, (Kathy Bates)who we will later meet. Hoyt killed her abusive husband and the argument was that Florida law which allowed women to avoid jury duty stacked the odds against her.

RBG now has a budding feminist fifteen-year-old daughter who is fond of mini-skirts and arguing with her mother.  They even argue about “To Kill a Mockingbird”.

All in all the visual transformation to the early seventies is very well done.  Except the demonstration.  I can’t put my finger on it, but there was something a little lame about it.  They should have gotten a technical consultant who had gone to college in the early seventies.  There are still a few of us alive.

And Then It Really Gets Interesting

So remember the supportive husband.  He’s still there cooking the meals and mediating between the two strong-willed females.  He’s a top-notch tax attorney.   Marty won my heart as we hear him at the cocktail party saying how humorous tax law is working his way into an account of how a joint filing requirement led to changes in Swedish marriage patterns.

The scene that starts the legal drama is when Marty drops a decision on Ruth’s desk and she snaps that she doesn’t read Tax Court decisions.  It’s not very long.  As a matter of fact, you can read it yourself which will help you appreciate the film,  Here it is Moritz v Com – 55 TC 113 (1970).  Moritz took a $600 deduction for amounts he paid to a woman who helped take care of his invalid mother. Here is what excited RBG.

We glean from petitioner’s argument a constitutional objection based, it seems, on the due process clause of the fifth amendment. Petitioner claims discrimination in that he, a single male, is not entitled to the same tax treatment under section 214 as other single persons, widowers and single women, are entitled.

The objection is not well taken. As stated previously, deductions are within the grace of Congress. If Congress sees fit to establish classes of persons who shall or shall not benefit from a deduction, there is no offense to the Constitution, if all members of one class are treated alike.

“This is sex-based discrimination against a man”.

I have scoured the lists of legal dramas, and am pretty sure that this is the only one that centers on a Tax Court decision.  The Firm includes a brief reference to partnership taxation, which is at the heart of the dramatic shenanigans. By Love Possessed, which does not even make the lists, drops the stirring discussion of thin capitalization included in the James Gould Cozzens novel, on which the movie is very loosely based – don’t get me started.

A Pretty Standard Legal Drama

The film from here is something of a classic legal drama, with RBG working the case.  She gets the very sympathetic Charles Moritz (Chris Mulkey) to proceed with an appeal on the basis of principle.  According to the movie (possibly drawing from a speech by Martin Ginsburg), the amount at issue is $296.70).  According to the Tax Court decision, it was $328.80.

Jack Townsend, who was working at DOJ tax during the period tells me that I can figure that discrepancy out by going to the Tax Court clerk and getting a copy of the petition.  In the movie version of my journalistic career, where I am played by Tom Hanks, that will be one of the scenes. In real life, I am just going to let it haunt me.

So RBG enlists the support of the ACLU and seeks the support of Dorothy Kenyon, who turns her down in a really lovely scene.  There is pressure on Marty to pull out of a losing case, which will embarrass him and his firm (The deal was that he was working the tax piece and Ruth the constitutional piece).

Here is where the dollar stakes can add a bit of amusement.  The $300, more or less, is a bit less than $2,500 in today’s dollars.  Jack Townsend, who has testified under oath that Martin Ginsburg was the smartest tax lawyer in the United States, consulted with him once on a collapsible corporation case.  Ginsburg charged $2,500 for a half-hour phone call.

RBG is pressured to settle the Moritz case and to focus more on another case Reed v Reed that is before the Supreme Court.  She is also pressured to turn the oral arguments entirely over to her husband.  They both resist that.

The final courtroom drama is the oral arguments, where even the judges try to have Marty handle the constitutional piece.  She flubs a bit, but the final two minutes she reserved for rebuttal put them over the top.  The ticking clock over oral arguments is really great cinematically.

The “Villains” And A Possible Counter-Narrative

There is a pretty detailed accounting of the opposition.   James Bozarth, like RBG, does not want the big case taken away from him by Ernest J Brown (Stephen Root), who after retiring from Harvard at 64 worked for the Department of Justice for 30 years.  Like Griswold, Brown is also portrayed in the film while at Harvard. I have to admit that did not register with me.  Jack Townsend tells me that Ernie Brown was considered a giant in the tax law.

The film portrays a conclave of Brown, Bozarth, and Griswold (now the Solicitor General of the United States) discussing the case as a fight for family values.  That one has my bs detector registering fairly high.  I have been reaching out to Bozarth, the only survivor of the three, but have not heard back from him.  Jack Townsend, who was at DOJ Tax at the time, doubts any such meeting would have taken place.

Jack Raynor portrays Bozarth as a sort of good old boy.  I think he has the distinction of being the only lawyer in the film who did not go to Harvard.  He graduated from the University of Texas School of Law in 1970. (He buffed up his resume with a Georgetown Masters of Law degree in Taxation, but that was not till after the decision).

The conservative counter-narrative would be a fight against judicial activism.  Congress should make the laws, not judges. And, as it happens, the Revenue Act of 1971 amended Code Section 214 to eliminate the discrimination that was being challenged.  The case kept going, though, because the change was not retroactive.

My favorite part of the film is the portrayal of Bozarth’s inspiration to analyze the United States Code to find all the statutes that might be affected by the decision because they discriminate on the basis of sex.  They borrow some computer time from the Department of Defense to compile the list.  Brown is rather disturbed by the notion of using computers for legal research. There are a lot of scenes showing manual typewriters at work that drive home the different technological world they were all practicing in.

According to this story by Alex Barasch, the compilation was actually only done for the Supreme Court appeal.

The portrayal of Erwin Griswold as a hidebound sexist is the one that I am the most suspicious of.  Christi Carras in a review of the “real life inspirations” singles out one of the film lines

“They think gender equality is a civil right?” a provoked Griswold sneers in a scene. “Let’s put this idea to bed, once and for all.”

The line occurs as Bozarth, Brown and Griswold are strolling together, a pretty improbable occurrence.  Here is an excerpt from an interview with Griswold in 1997 by Victoria Radd.

Q: So that was the first entering class. A: Yes. I used to tell the young women who came through here, patting myself on the back, that I was the Dean who brought about the admission of women to the Harvard Law School. But I soon learned their response was, “Well, why didn’t you do it sooner?,” and again I say it took some doing at the time and . . . Q: There was still some opposition to the admission of women at that time? A: Yes. At our first meeting I would say one-third of the faculty was opposed to it, and that was too big an opposition to seek to force it through and so we laid it on the table, not to reject it but literally to consider it further. I brought Mark Howe into action, and he was particularly helpful in talking with people. I think we ended up with four negative votes of whom Bull Warren was one — he said he would have to revise all his notes, which some people thought was a good idea

That was 1950, the point at which according to Betty Friedan in the “Feminine Mystique”, higher education for women in the professions was going backwards.

Fewer women in recent college graduating classes have gone on to distinguish themselves in a career or profession than those in the classes graduated before World War II, the Great Divide. Fewer and fewer college women were preparing for any career or profession requiring more than the most casual commitment.

RBG’s sarcastic answer to Griswold’s question about why she was taking a man’s place in the school (To be a more understanding wife to her lawyer husband) was kind of a parody of the feminine mystique.

Actually It’s Great

Filmmakers have trouble making it a drama without a villain.  So I guess Erwin Griswold had to be “it” even if the evidence of his anti-feminism seems to be largely a matter of projection. So I’m thinking my problem with the portrayal of the other team is more of a nit that I am picking along with that $32.10 discrepancy, which still bothers me.

The dialogue on the law is fantastic and the picture painted of the seventies is very well done.  The classroom scene made me laugh because I remembered an incident from the very brief training session that New England VISTA volunteers received in 1974.  The speaker urged us to move chairs into a circle so that it didn’t look so much like a classroom.  All the recent college graduates broke out laughing because we had heard that in half our classes.

And the one piece of required reading I will give you besides the decisions is this speech Martin Ginsburg made to the ABA Tax Section when he received the 2006 Distinguished Service Award.

And From Someone Who Would Know

Howard Medwed, another one of those Harvard Law School graduates, gave me his thoughts on the film.

I saw it yesterday and thought it was great. I thought it was, perhaps, the best dramatization of an appellate argument I have ever seen.

Howard thought that Griswold really did not deserve to be a heavy.  He agrees with Jack Townsend that Martin Ginsburg was the smartest tax lawyer in the United States. And he played golf.  Go figure.