Originally published on Forbes.com.
On The Basis Of Sex will be on Amazon on March 26. If you didn’t see it in the theater, watch it. And if you did see it in the theater watch it again. The film has been something of an obsession with me, since a big part of it is about the appeal of a Tax Court decision. It happens that this will be most likely my last and most critical piece on the film, but I don’t want that to drown out my overall endorsement.
A Legal Drama
Besides being a great biopic of Ruth Bader Ginsburg, On The Basis Of Sex had the potential to be the great legal drama of the 21st Century, our Inherit The Wind or To Kill A Mockingbird. And making a great legal drama about the appeal of a $300 Tax Court decision is quite an achievement. The film has one very serious shortcoming. Its portrayal of the opposition – Team USA, as I call them – was cartoonish.
It was as if the film was a superhero origin story with Solicitor General “Dean” Erwin Griswold as the master villain , supported by Ernest Brown and James Bozarth of the DOJ Tax Division Appellate Section as the minions. It also misunderstands the grounds for opposition to the Ginsburg’s appeal of the Tax Court’s denial of a dependent care deduction to a taxpayer, because he was a never-married man, a confirmed bachelor as we used to say.
Fight For Family Values?
The movie portrayal of the government position and the attitude of Griswold can be seen at around 1:35 in this trailer.
“They think gender equality is a civil right? What’s at stake is the American family. Let’s put this idea to bed once and for all.”
Later in conclave with his minions, we have (from the script):
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.
I have already covered James Bozarth’s reaction to his portrayal, but I couldn’t talk to the other guys, them being dead and all. I have also covered the notion that the bad guys drafted a Pentagon computer as part of their villainous plan, concluding that the story was apocryphal.
In Defense Of Erwin Griswold
I received encouragement to keep digging from Erik Griswold, Erwin’s grandson, who did not recognize the character of his grandfather in Sam Waterston’s portrayal
The man I knew does not resemble the character portrayed in the film. Apart from the “Harvard Club Dinner” scene (which in reality took place in a far less formal living room after a dinner served at my Grandparents’ home), the words spoken by the brilliant actor Sam Waterston in portraying Erwin Griswold were created to help tell an entertaining story; An important one about a very remarkable and heroic American, Ruth Bader Ginsburg.
Yes, Erwin had a gruff, Midwestern directness that often caused him to come across as aloof, but he was a deeply principled man never afraid to ask questions, regardless of what might be thought of them during or afterwards.
I reside in Southern California and am familiar with the movie industry via friends employed in it and osmosis. I know that the makers of “On the Basis of Sex” had many reasons to have to produce the portrayals they did; movies are in the end a business venture and I am very glad that theirs appears to have been profitable.
I remain, however, very proud of the courageous role that the real Erwin Griswold played in preserving and expanding civil rights to those who were under threat of losing them, or did not have them at all, even if the methods, process and nuances he used might have been viewed as uncaring.
The Man Who Picked Up The Baton
Not very long after the Tenth Circuit issued its opinion, Richard Berenson Stone, now Professor Emeritus of Law at Columbia University caught the case on its way to the Supreme Court. He was Assistant to the Solicitor General and reviewed the petition for a writ of certiororari – essentially the request for the Supreme Court to reverse the Tenth Circuit.
Professor Stone distinctly recalls getting the phone call from Ernest Brown to fill him in on the petition and on the Ginsburgs. Stone had a very close relationship with both Brown and Griswold. Stone graduated from Harvard Law School in 1967, a decade after the Ginsburgs. Later he would have a close relationship with Marty Ginsburg as they labored on debt-equity regulations. Like several others, I have heard from he indicates that Marty Ginsburg was the smartest tax lawyer in New York (Others say the country, but where else would the smartest tax lawyer live?).
Stone worked in private practice for two years, when Brown recommended that he go to work for Dean Griswold who, though a Republican, had been appointed Solicitor General by Lyndon Johnson. (Everybody kept calling him Dean even after he retired from that job.) Griswold stepped down as SG in 1973, missing out on the Saturday Night Massacre that fell on Robert Bork.
The Other Side Of The Argument
Professor Stone was in Israel so he only got to see the film recently and he had to order a copy of the writ package from Amazon. He pointed out the very apologetic way that the petition outlines the issue.
The argument is that when the relevant provision (Section 214) was added to the Code in 1954, it was a fact that for the most part, women were charged with home care, while men tended to be the earners. It was also a fact, “regretted by most and reprehended by federal law” that women had less earning power than men. That made it reasonable for Congress to favor women in providing the dependent care deduction.
The writ also made a point that Mortiz would have been entitled to deduct the payments as medical expenses, had his income not been so high. The Code was amended in 1971 to eliminate the gender discrimination from Section 214, but Mortiz would not have benefited from that because of an income phaseout. Moritz’s gross income in 1968 was $27,600, which is the equivalent of around $200,000 in today’s dollars. (In 1968, if I had eight dollars in my wallet I thought I was ready for anything)
The ironic thing that I noticed was that while the government petition noted the potential magnitude of the case by attaching an appendix (Appendix E) indicating all the provisions of the United States Code that distinguish between men and women, the Ginsburgs, in their response, downplayed the importance of the decision.
Since the issue in controversy will not arise under the statute as amended the case is not sufficiently important to warrant review by the Court.
The case is not an appropriate vehicle for excursion into the validity of the statutes cited in Appendix E.
Got Ginsburg Right – Brown And Griswold Not So Much
Professor Stone told me that it was very moving to see people he knew so well portrayed in film and then have the thing stop right before he walks on the stage. He thought that the film captured Marty Ginsburg’s character very well. Stephen Root got Ernest Brown’s appearance right.
When it comes to attitude and character though, Griswold and Brown are unrecognizable in their portrayal. They were much deeper more thoughtful men than what you see and they did not have neanderthal views on women.
One of the jobs of DOJ is to defend the constitutionality of statutes passed by Congress and signed by the President. That is the job they were performing in what none of them thought was a particularly significant case. Professor Stone told me a story too long for this piece about a case where he thought an agency interpretation of a statute was wrong. He defended it and lost 9-0. Griswold congratulated him on a job well done.
Projecting The Present Into The Past
What I saw going on in the film was a projection of the contemporary conservative movement into a more bipartisan environment . The notion is that because the Ginsburgs were fighting for gender equity, the opposing attorneys must have been fighting against gender equity.
Ironically, the arguments they made were about mitigating employment discrimination through a tax provision. With some adjustments, you could flip the issue between conservatives and liberals in our contemporary politics as conservatives tend to argue that the elimination of de jure discrimination is enough and liberals look for more remedial measures.
I might have been dismissive of Erik Griswold’s defense of Erwin. After all, it is hard not to think highly of your ancestors. Consider the plight of the United Daughters of the Confederacy nowadays. But the first-hand evidence from Professor Stone and the documents themselves support his defense of Dean Griswold.
I tend to hold progressives to a higher standard in these matters, so I have to say this part of an otherwise fine film is disappointing.
Daniel Stiepelman Is A Class Act
It was with some trepidation that I reached out again to screenwriter and RBG nephew Daniel Stiepleman. His response was really nice.
For a time, my family lived in rural Nepal. It was wonderful, except for one source of immense stress. Our son was one year old and just learning to walk. And of course, there was no American-style “baby proofing” to keep him safe. Every time he boldly toddled away, my instinct was to hold and protect him, while my intellect told me he had to roam. It was gut-wrenching.
I mention it so that you’ll have some sense what it feels like to write this next sentence:
After eight-plus years of research and writing, now that the film is winding down its theatrical run, and with other work calling for my attention, it’s time to let On the Basis of Sex stand on its own.
I can only hope that on its journey the film continues to find viewers as curious, engaged and passionate as you have been.
Previous Coverage
I think I am done with On The Basis of Sex. Here are my previous posts.
“On The Basis Of Sex” – What To Read Before You Watch
On The Basis Of Sex: How A Tax Case Became A Victory For Gender Equity
On The Basis Of Sex: Portrayal Of Opposing Attorney Has Little Basis In Reality
On The Basis Of Sex: Watch The Other Lawyers
On The Basis Of Sex – About That Pentagon Computer
On that “being done”, I also thought that about Kent Hovind, but my readers know how that went.