Tales from the 10th

How the Tenth Circuit Got Ruth Bader Ginsburg Her “Good Job” (Part 1)

November 22, 2021 Tina Howell Season 2022 Episode 3
Tales from the 10th
How the Tenth Circuit Got Ruth Bader Ginsburg Her “Good Job” (Part 1)
Show Notes Transcript

In Part 1 of this special two-part episode, retired Tenth Circuit Judge Robert H. Henry shares the events leading up to Ruth Bader Ginsburg's famous speech about the Moritz case, which helped launch her career. Our guest also shares special observations about the inspiring partnership and marriage of Ruth and Martin Ginsburg.

Read more about Moritz and RBG's now famous 2010 "fireside chat" in Volume IX, Issue 1 (2019) of the Tenth Circuit Historical Society's newsletter: http://www.10thcircuithistory.org/newsletters


Leah C. Schwartz, Tina Howell, Judge Henry


Judge Henry  00:00

I'm Robert Henry, and you're listening to Tales from the 10th Circuit. 


Leah C. Schwartz  00:04

Hello, and you're listening to Tales from the 10th, a podcast about the rich history, culture and contributions of the 10th Circuit Courts. I'm your host Leah Schwartz, a Wyoming lawyer and former 10th Circuit law clerk,


Tina Howell  00:16

And I'm producer Tina Howell, the Emerging Technologies Librarian for the 10th Circuit.


Leah C. Schwartz  00:21

Today's two-part episode tells the story of how the 10th Circuit got Ruth Bader Ginsburg her "good job". It's a story originally written by her husband Martin Ginsburg. In a speech he prepared for the 10th circuit's bench bar conference in 2010. Shortly before he was scheduled to give the speech, however, Marty Ginsburg passed away and in a remarkable turn of events, newly widowed Supreme Court Justice Ruth Ginsburg traveled to Denver to deliver her late husband's remarks herself. 


Tina Howell  00:51

Not only will listeners be able to hear RBG's remarkable speech in part two of this episode, but they will also hear from retired Tenth Circuit Judge Robert Henry, who was a friend of both the Ginsburgs. In this first part of our story, Judge Henry shares his thoughts about Ruth and Marty Ginsburg and their marriage and how the speech we'll soon hear came to be. He begins with this first meeting of the couple.


Judge Henry  01:15

I met Justice Ginsburg when she came to Denver to serve as our Circuit Justice. She had recently been appointed to the Supreme Court. Justice White had stepped down and he was our Circuit Justice, he was from the 10th Circuit. The courts tend to let people from the circuits eventually be Circuit Justice if it works out. Justice Ginsburg ended up in the Second Circuit, which was her own circuit, but she started out in the 10th Circuit, and she was with her indefatigable redoubtable husband, Marty. Marty was known for several things; he was a noted tax lawyer and tax professor. He was also noted as a great cook. He was an accomplished French chef cooking in the French school, and other other styles too, but he was particularly good at French cuisine. The Supreme Court actually published a cookbook of his that the spouses of the Justices sponsored, because all of them had had the chance to sample Marty's bill of fare, and it was excellent. So, Marty and Ruth, and she asked us to call her Ruth, we tend to call her Justice Ginsburg, but she asked the judges to call her Ruth. We had a meeting with her to talk about what we could ask her and some questions with for her appearance before the Circuit. And she was pretty cautious at that time because she just been through the confirmation process and you know, all sorts of things happen in that process. As we were talking to her, she would always turn to Marty and say, well, can I answer that question? And Marty would say, well, sure you can you answer that question before the Senate Judiciary Committee, so you can answer it here now. It was obvious that they had a real partnership, both professional and personal partnership. They were so, it took such great care of each other. It was obvious that theirs was a special relationship. And you you see that throughout their life, and they shared childcare together. When Justice Ginsburg received some calls when she was on the DC Circuit from some educators concerning her children, she said, well, you can call my husband too, you know, he's an equal partner in this venture. She said, you know, people, that time tend to not worry about interrupting women when they work, but they were afraid of interrupting men when they work. And there are so many things and just the relationship between the sexes, between men and women that Justice Ginsburg changed in her career. She shattered the glass ceiling really opened the door for women and men to achieve a more natural and logical and legal relationship.


Leah C. Schwartz  03:58

Not long after meeting the Ginsburgs Judge Henry developed a close personal friendship with a couple who shared his love of opera and the city of Santa Fe. Listen on for the continuing story, including how Judge Henry planned to host Marty Ginsburg as the featured speaker at the 10th Circuit's Bench Bar conference before tragedy struck.


Judge Henry  04:19

Well, Justice Ginsburg famously loves opera, and she just really enjoys classical music, but particularly opera and the city of Santa Fe, the city of the holy faith of St. Francis of Assisi has a great opera in the summer. Unlike some summer operas, they perform a different opera each night. So, you can, in a season, you can go three nights and see three operas. There's usually just three, but occasionally there might be four. So, Justice Ginsburg would love to come to Santa Fe, spend some time there in the summer so that she could attend these operas night after night. She became close to Jean Seth, whose late husband was the Circuit Judge, Oliver Seth, and Jean Seth, she had the very first art gallery on Canyon Road. And she was the hostess with the mostess of Santa Fe. She was just a loved matron of the arts and matron of the city. Justice Ginsburg always called her and asked her to plan her trips to Santa Fe. And so, Justice Ginsburg and Marty would come to Santa Fe. You can imagine Marty was in heaven there because Santa Fe is culinary capital of the 10th Circuit, if not the United States, he was able to experience all sorts of great cuisine there, not just the Spanish and Anglo cuisines, but but other other cuisines are represented there, too. When whenever they would come Jean Seth would call Jan me and she'd said (we had a little casita there in Santa Fe), and she'd say, you need to be here for Justice Ginsburg, we're gonna have dinner for her, we're gonna have lunch for her, and you need to come and help me host her. We did that and got to be quite friendly with them.

Later on, after Marty passed away, Justice Ginsburg actually borrowed my casita at one time, spent a week there. It was very humble, it's a very humble little place but she's a humble person. And she enjoyed that very much. She continued to go to the opera for several years, even after Marty passed away. So that's how we got to know them.  One time they were visiting, and we had a circuit conference coming up it was going to be at the Broadmoor. She was no longer our Circuit Justice, but we had lunch together and Marty was his usual talkative self, and I was chief judge then and I hit on this idea that I could ask Marty to come give a talk at our circuit conference, I had to have the gumption to ask him, you know. I told my wife, I said, you know, this, this could be a great thing because if Marty comes, she'll come in, we'll probably get two Ginsburg’s for the price of one. She'll probably give us a speech too and so it will just be wonderful. I asked him and he paused, and he said, well, what would I talk about and I said, well talk about tax law. I said, give us a list of the 10 mistakes that federal judges make on tax law. I thought he could make a great speech on tax law if he wanted to. I thought he could make great speech on anything. He was so bright and so witty. He was was very clever and likes little minor practical jokes and things. I figured he would be great, at our circuit conference, and he said, well, let me think about it and at the end of the meal, he said, I believe I will do that. I was really excited about that. I had no idea what he would talk about, but I knew it would be great.

Then very unfortunately, he died, he passed away. He had inoperable cancer, he wrote his wife a letter that I happen to just have a copy of that just days before he died, he wrote, my dearest Ruth you're the only person I have loved in my life, setting aside a bit parents and kids and their kids. And I have admired and loved you almost since the day we first met at Cornell, what a treat it has been to watch you progress to the very top of the legal world. I will be in J. H Medical Center until Friday, June 25, I believe, between then and now I should, I should think hard on my remaining health in life, where the balance of time has come for me to tough it out, or to take leave of life because of the loss of quality now simply overwhelms. I hope he will support where I come out. But I understand he might not. I will not love you a jot less.

 Well, he died a few days afterwards. Of course, I was very sad. You know, of course, I was disappointed that we wouldn't get to have him give the speech, but I was sad that he had died and sad for her and she had lost such a remarkable life partner. And a few days after that, or a couple of weeks after that, I got a call from Justice Ginsburg. And she said she said Robert, she said I suppose you read that Marty passed away? And I said yes, I'm so sorry, Justice. He was such a great person and such a great friend to the court and friend to to all of us. And she said yes, and he has not finished our tax returns for this year, but he finished a draft of the speech that he was going to give to the 10th Circuit. It's all finished and typed and ready. And I wondered if it would be permissible if I came to the Circuit conference and deliver that speech. Well, duh. I mean, can you imagine as sad as the situation was, it was just wonderful to get to hear from her lips what he wanted to tell us, and I had no idea what it was at that time, it might have been, the 10 mistakes on taxes that federal judges make. But instead, it turned out to be the story of a case, Moritz vs. The Commissioner of Internal Revenue, which was immortalized in the 2018 movie, On the Basis of Sex. It's the story and I think the idea came to tell that story in the movie from hearing Marty's speech, which of course, CNN published, and it was widely widely distributed. In Moritz, Justice Ginsburg successfully persuaded the federal appellate court for the 10th appeals to extend a tax benefit and this tax benefit had previously been available only to single women who cared for their dependent parents. And she made it extend to single men in the same situation. You know, classifications based on sex were not subject to intermediate scrutiny in those days. That was another Ginsburg case Craig vs. Boren that she wrote the brief for that accomplish that. In Moritz, she convinced the 10th Circuit that this characterization of a single son could not receive a tax deduction to support his ailing mother, but a single daughter could. It made no sense under any kind of scrutiny. It was the beginning of her career in gender litigation, her first really gender equality case. And that was what Marty was going to talk about. Of course, I didn't know that at the time. I didn't know that until she began giving the speech.  

Afterwards, you know, I had wondered how so close to his death, how she could do that, and then how she could give that speech. And after I heard it, it was clear to me that she had to give it and as our listeners listened to it, they'll see how beautiful it was, and what a great retelling of a very, very important story, the beginning of Justice Ginsburg's career. Sonnet 116 of Shakespeare came to my mind, and I knew Justice Ginsburg was aware of it, but I found a really nice copy of it and I mailed it to her. It's the one as you recall, it says, let me not to the marriage of true minds admit impediments. Love is not love, which alters when its alteration finds, or bends with the remover to remove, oh, no, it is an ever-fixed mark. And their relationship is the one described by that sonnet, which I encourage people to read. It's sort of like the love chapter in the in the Greek Bible. It's almost a perfect poem if there is such a thing. I got a note back from Justice Ginsburg. And she said, Sonnet 116, will never be far from me. And I think what she meant was that not only was she going to keep the copy that I gave her in her purse, but it would be in her mind and her thoughts as she thought about Marty for the rest of her life.


Leah C. Schwartz  12:38

Tune in to part two of this episode to hear the historic remarks of Ruth Bader Ginsburg delivered at the 2010, 10th Circuit Bench Bar conference. This episode was produced and edited by Tina Howell. Subscribe and download at the Historical Society's website 10th circuit history.org or at Apple podcast Spotify or Stitcher


Tina Howell  12:59

Special thanks to Greg Kerwin Brett Cohen, Stacey Guillon and Diane Bauersfeld.


Leah C. Schwartz  13:05

Thanks so much for listening.