Originally published on Forbes.com.

As I have previously reported I really loved “On the Basis of Sex” – the Ruth Bader Ginsburg biopic/legal drama.  I still love it, maybe even a little more. as I find that a critical section of the film is, as I suspected, a mixture of fantasy and projection .  That would be the portrayal of the Team USA – Erwin Griswold Solicitor General of the United and Ernest Brown and James Bozarth of the Department of Justice Tax Division Appellate Section.

The Fight For Family Values?

In the film, Martin Ginsburg drops a Tax Court decision on RBG’s desk telling her to read it.  She tells him that she doesn’t read Tax Court decisions, but she reads it anyway and realizes that the case of Charles Moritz, a never-married man denied a deduction for caring for his mother,  is an ideal vehicle to fight gender discrimination.  He was denied the deduction specifically because he was a never-married man.  As Moritz put it, a dutiful daughter would have been allowed the deduction, but he, a dutiful son, was denied the deduction.

It is pretty undisputed that the Ginsburgs took up the case because it was about gender discrimination and that they and the ACLU were trying to set an important precedent.

So Griswold, Brown, and Bozarth must have been fighting for gender discrimination.  Right?  That is certainly what you can find in the screenplay.

A cold day. The ground dusted with snow. But (Dean) Erwin Griswold doesn’t seem to notice. He’s 67 now, and Nixon’s Solicitor General. Brown and Bozarth walk with him…

GRISWOLD For God’s sake! Where does it end? Gender equality as a civil right? ! BROWN When everyone’s aggrieved and a victim. It’s what the ACLU does. Divide the country into smaller and smaller subgroups. GRISWOLD Ginsburg… Cancer, right? And the wife. Very demanding. BROWN But smart. GRISWOLD Ten years. Ten years I fought to enroll women at Harvard Law. The faculty, the university — even my wife warned me it could come back to haunt me. Now this is the thanks I get. BROWN Erwin, we could settle. Martin Ginsburg was one of my best students. A practical young man. I can call him, tell him we’ll let the man have his money. And we go our separate ways. GRISWOLD No. … No. We settle now, it’s open season. Let’s put the idea of gender discrimination to bed once and for all. They handed us a winnable case. BROWN (on the mission) Then we’ll win it.

Griswold talks of Bozarth as if the young man weren’t there: GRISWOLD You’re sure he’s up to it. BROWN Mr. Bozarth is a fine litigator.

(to Bozarth)

Tell him your idea.

BOZARTH We list the laws. GRISWOLD What laws? BOZARTH All of ‘em. Every federal law that treats men and women differently. So the Court sees exactly the can

of worms these folks are–

Griswold’s belly-laugh interrupts him. Until, looking between Brown and Bozarth, Griswold realizes it’s not a joke.

GRISWOLD Last I checked, the U.S. Code was 20,000 pages long. (to Brown) Whose gonna read it? Him? BOZARTH I can get it done, sir. All I need is an introduction. Griswold’s interest is piqued. GRISWOLD To whom? Bozarth knows exactly how outrageous it sounds: BOZARTH … The Secretary of Defense

The scene then shifts to the Pentagon, with the classic picture of computer tape drives whirling that was the stereotype of high tech back in the day.

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.

I just loved that scene, since it contrasts so well with all those manual typewriters and the scene where the typist suggest to RBG that all that sex, sex in the brief will distract the men, which requires the whole document to be retyped to substitute the word gender. Later in a discussion among Bozarth, Brown, and Griswold, we get

BROWN (to Bozarth) Paint the judges a picture of the America that will exist if they rule the wrong way. Children running home from school to find… No one’s there. Mommy’s at the office. Or on a factory floor. GRISWOLD That’s very good, Ernie. If a man and woman vie for the same job, she can work for less. What is a man without a paycheck to take care of his family? BROWN What woman would want him? BOZARTH (going with their flow) Wages go down. Divorce rates soar. Society unravels.

And The Eagerness To Take On The Big Case

The Moritz case is the first case started in a long chain of cases that RBG will use to take gender discrimination down brick by brick.  She was eager to take this on.  So one would think that her opponent must have also been eager to take it on and geared up to win it.  That’s what the screenplay indicates.

BOZARTH 10th Circuit Court of Appeals. Know who I am, Gladys? GLADYS Sure do. You’re the kid who’s going to sign my form. BOZARTH (as he does — grinning) I’m a guy moving up in the world.

Later speaking to Brown, he says – “I know how to win this case, sir. Better than Murphy. Better than anyone. You need me on this appeal.”

And In Real Life

Griswold and Brown have gone to their reward, but I am happy to report that James Bozarth is still with us.  I spoke to him today.  Born in 1944, he is pushing 75, but still working at Hinkle Shanor LLP in Roswell NM.  He went there after leaving government service in 1974 and returned after a decade of solo practice.  He grew up in Texas. His parents were school teachers with his father later moving into administration.  He is of German descent on both sides of this family, with one side going back to 1763 and the other 1850.   He is a Missouri Synod Lutheran, which makes me a little skeptical of the good old boy way that he was portrayed in the film.  I thought sure Jack Reynor was portraying a Southern Baptist member of the Sons of Confederate Veterans, but the real Mr. Bozarth does not even have any Civil War ancestors.

Mr. Bozarth has been married to the same woman since 1968 and has three daughters all of whom he is happy to report are gainfully employed.  He considers himself a conservative, but back in the day was more of a liberal.  As a teenager, he wanted to get on a bus with some demonstrators to protest racial discrimination in Selma.  He had a great admiration for JFK and with a group of college friends was backing the candidacy of Bobby Kennedy in 1968, much to the chagrin of his politically connected mother in law. He was devastated by RFK’s assassination.  He suspects now that his mother in law might have had more to do with his getting a job with DOJ right out of law school (University of Texas 1970) than he thought at the time.

The Justice Department Tax Division represents the United States in tax litigation in district and appellate courts. (IRS has attornies that represent the Commissioner in Tax Court).  Moritz was one of the first of about twenty appellate cases that Mr. Bozarth worked in his time at DOJ.  So he must have been excited and eager or so a screenwriter would think.  Not so much in real life.

A Loser

Mr. Bozarth told his bosses that he thought the case was a loser. Rather than seeing the issue as one of blatant gender discrimination, he thought of it as a simple oversight.  His view was that had Congress thought through the language they would not have denied the deduction to a never-married man.  Evidence of this view is that the law was amended by the Revenue Act of 1971, perhaps in response to the ongoing litigation in the case.

Mr. Bozarth wrote a brief that was entirely rewritten by Brown and Mr. Bozarth would just as soon have had Brown handle the oral arguments.  They bucked him up and told him to go forward that he could handle it.

No Meetings

Mr. Bozarth never met with the Solicitor General.  As a matter of fact, the only time he was ever in the same room with Mr. Griswold was when there was a meeting for all of DOJ about a crisis.  I didn’t get it quite straight as to which one.  Remember that was the Watergate period.

And No Pentagon Super Computer

In the film, it is, of course, the young guy, Bozarth, who hits on the idea of using Pentagon computers to parse the United States Code.  He just laughed when I told him about that part. (The movie is not yet playing in Roswell, so he has not yet seen it.)  The list of the sections of the US Code was actually not included in what went to the Tenth Circuit.  It was with the package that went up to the Supreme Court which declined to take the case.  The Pentagon origin story as far as I have been able to track it down is based on the notion that nobody else had computers good enough for that job.  I believe the IRS had pretty good computers for the time even then.  Just saying.

Artistic License

It does say “inspired by a true story”, so maybe this stuff is not that bad.  My filmmaker friend Jonathan Schwartz who watched the movie with me thinks differently.  He thinks that a few years ago, people were really trying to get things right and that something like this mangling of facts is unfortunate.

Also, I find it troubling that there is an artistic drive to create a resistance that makes RBG even more heroic.  Mr. Bozarth told me that screenwriter and RBG nephew Daniel Stiepleman did speak to him a few years ago, but that he did not quiz him as nearly as hard as I did.  We can’t ask Griswold and Brown about what they were thinking, but we really don’t need to make up what Mr. Bozarth was thinking.

Possibly having him push back and say that he thought the case was a loser, as he did in real life, would have made for a more nuanced and complex story.  Somehow caricaturing the opposition strikes me as not quite the right artistic choice, but of course, as a screenwriter, I make a pretty good tax researcher.

I reached out to Mr. Stiepleman’s publicist and they indicated that he might get back to me.  I’ll let you know.  Jack Reynor’s publicist thanked me but indicated that “he is not available for this”.

A Modest Man

One of the most interesting things I found in talking to Mr. Bozarth is his modesty.  He told me that he never mentions the case to anyone.  I know that if I were in his shoes I would have included facing Ruth Bader Ginsburg in oral arguments as one of my war stories like the time I – well, never mind.

Other Coverage

I have to say that I may have a scoop here.  With all the coverage that “On the Basis of Sex” is getting, it is kind of surprising that I am the only journalist that reached out to Mr. Bozarth, but so it goes.

Update

I did get a response from Daniel Stiepleman, that may have crossed in the mail, so to speak.

I was lucky enough to have the opportunity to consult with Mr. Bozarth early in the development process, as well as Judge Holloway (who has since passed) and, of course, RBG.

What Jim told you — “that he did not think that he was going to win the case. He told his superiors that it was a loser.  Also, no trip to the Pentagon to use the computers.  He never met with the Solicitor General” — is basically what he told me as well. He also told me that his superiors ultimately wrote much of the Moritz brief, on which I based his oral arguments in the movie. (Alas, there were no transcripts or recording for me to draw from.)

Especially because he was not ultimately making arguments he felt could win, it was important to me not to portray Jim as a straw-man villain. He deserved to be treated sympathetically, and not to shoulder the blame for arguments I’m not convinced he would have made on his own. That is why, as you wrote in one of your posts, “James Bozarth, like RBG, does not want the big case taken away from him.” I opted to place him in the context of the power structure of the DOJ.

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.

Because that list was the “treasure trove” that gave rise to the Women’s Rights Project and ultimately RBG’s career, it seemed crucial to include it in the movie. Inserting it into the DOJ’s Moritz brief, rather than extending the movie for another 10 minutes to explain what filing for cert is (only to have it not work), seemed the most efficient avenue to do so.

Finally, speaking of Erwin Griswold, it seems worth noting — and I hope you will, if you plan to keep covering the movie — that he, like Moritz, was also a domestic caregiver. Griswold’s wife had adult-onset polio. For the 18 months or so that she was hospitalized, he was the only at-home parent to their children. (He had hired help.) And after her return, his wife lost the use of her legs. This parallel between the two men was a bit more prevalent in the script than it ultimately was in Mimi’s excellent movie.

Mr. Stiepleman cited Lila Thulin’s piece in Smithsonian which includes:

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.)

While it is true that nobody had personal computers, they did have computers at the IRS in the sixties (And as this article notes, they are still using, if not the same computers at least the same software to some extent).  What Lila Thulin has there is an inference.  This is so totally unimportant to the film that I should just let it go, but it still bugs me like the $32.10 discrepancy I noted in my last piece. It is an intriguing piece of computer history.  I still have not been able to track down a copy of Appendix E for myself.

I think it was very gracious of Mr. Stiepleman to write to me about his artistic decisions and I do think it was a good movie.  So there is that.  I still can’t forgive Peter Jackson for dropping the Scouring of the Shire and making Gimli a comic figure, but Mr. Steipleman gets a pass from me for his treatment of James Bozarth.