How the Tenth Circuit Got Ruth Bader Ginsburg Her “Good Job” (Part 2)

In Part 2 of this special two-part episode, hear the late Justice Ruth Bader Ginsburg tell the incredible story of how she came to challenge a discriminatory provision of the Tax Code in the Tenth Circuit case of Moritz v.  Commissioner of Internal Revenue.  

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

Transcript

SPEAKERS

RBG, Leah C. Schwartz, Tina Howell, Judge Henry, Gregory Kerwin

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 Tenth Circuit Courts. I'm your host, Leah Schwartz, a Wyoming lawyer and former Tenth Circuit law clerk. 

Tina Howell  00:16

And I'm producer Tina Howell, the emerging technologies librarian for the Tenth Circuit. 

Leah C. Schwartz  00:20

On this second part of our special two-part episode, we take you back to 2010. The setting is the Tenth Circuit's Bench Bar conference at the Broadmoor hotel in Colorado Springs. Supreme Court Justice Ruth Bader Ginsburg takes the stage to deliver a speech originally prepared by her husband Martin Ginsburg, who had just passed away that June from cancer. The crowd quiets as then Chief Judge Robert Henry of the Tenth Circuit begins his introductory remarks.

Judge Henry  00:51

It is a delight to welcome all of you here. And of course, it is a special honor to have our once circuit, Justice Ruth Bader Ginsburg back with us again tonight. You know much of her career I'll just briefly remind you, she attended Cornell University graduated first in her class. She attended Harvard Law School, before transferring to Columbia to be with her husband Marty, who'd acquired a job at a New York law firm. She made Law Review, becoming the first woman to achieve that honored position at two major schools. And after a year at Columbia, she graduated at the top of her class. The years following were spent in academic endeavors. She worked as a research associate, she worked for several feminist causes. She had some interesting matters in the Tenth Circuit. While at Rutgers, she battled maternity leave rights for school teachers. She began active participation in the American Civil Liberties Union. She was the first woman hired with tenure at Columbia Law School. Her star continued to rise she joined many important committees and various law associations. After a brief stint as a fellow at the Center for Advanced Study in behavioral sciences and Stanford, President Jimmy Carter nominated her to serve as a Judge on the U.S. Court of Appeals in the DC Circuit. She served as a federal appeals judge from 1981 until President Clinton nominated her to succeed our own legendary Byron R. White. In 1933, she became the second woman on the U.S. Supreme Court. At the time of her nomination, then Chairman of the Senate Judiciary Committee, Joe Biden said, Justice Ginsburg is a nominee who holds a rich vision of what the Constitutions promises of liberty and equality mean, balanced by a measured approach to the job of judging. A couple of years ago, the Ginsburgs were visiting with my wife, Jan and me, at Santa Fe and I invited Marty, to come deliver a speech at our circuit conference. He said, why me? And I said, because you're a universe of one, the funny tax guy. I thought he would come and talk about tax law. Instead, he prepared another speech. After his untimely passing, Justice Ginsburg called me and said that since he had prepared that speech, she would like to come give it tonight. And that speech tells about part of her career in the Tenth circuit, which created a legacy for law that we can all be very proud of. So, will you join me in welcoming Justice Ruth Bader Ginsburg?

RBG  03:38

My dear husband, who was a great tax lawyer, got an extension for our 2009 tax return. But he had his Tenth Circuit speech all written out. And I know he would want you to hear it. So bear with me, my timing won't be like his, but I'll do the best I can.

As you have heard my field is tax law. When Chief Judge Henry asked me to speak to you today, and hinted it might be on my favorite subject, naturally, I prepared a long paper addressing the Supreme Court's performance in tax cases. Sadly, the Chief Judge reacted with surprising hostility and so I am going to speak instead about the only significant thing I have done in my long life without Honorable Ruth. I shall recall for you the one case in which we served as co-counsel. It was also the one occasion either of us with privilege to argue in the Tenth Circuit. Nonetheless, fascinating, as you will surely find this reminiscence, all in all, you are the losers, for I promise you the Supreme Court's performance in tax cases is an exceedingly funny subject. 

In the 1960s, I practiced law mainly tax law. In New York City, Ruth began her law teaching career at Rutgers law school in Newark. One of the courses she taught was constitutional law. And towards the end of the decade, she started looking into equal protection issues that might be presented by statutes that differentiated on the basis of sex. A dismal academic undertaking, because back then, the United States Supreme Court had never invalidated any legislative classification that differentiated on the basis of sex. Then as now, at home, Ruth and I worked evenings in adjacent rooms. Her room is bigger, and I must interject. It is not so. In my little room one evening, in the fall of 1970, I was reading a tax court advance sheet and came upon a pro se litigant one Charles E. Moritz, who on a stipulated record was denied a $600 dependent care deduction under old section 214 of the Internal Revenue Code, even though the Tax Court found the operative facts save one fit the statute perfectly. Mr. Moritz was an editor and a traveling salesman for a book company. His 89-year-old dependent mother lived with him. In order to be gainfully employed without neglecting mother or packing her off to an old age home, Charles paid an unrelated individual at least $600, in fact, a good deal more than that, to take care of his mother when he was away at work. There was just one small problem and in the tax court, it served to do him in. The statute awarded its up to $600 deduction to a taxpayer, who was a woman of any classification, divorced, widowed, or single, a married couple, a widowed man, or a divorced man, but not to a single man who had never married. Mr. Mortiz was a single man, unmarried. Deductions are a matter of legislative grace, the tax court quoted, and added if the taxpayer were raising a constitutional objection, forget about it. Everyone knows the tax code is immune from constitutional attack.
Let me digress for a moment to tell you that in the tax court, Mr. Moritz, although not a lawyer, had written a brief. It was one page and said, "If I were a dutiful daughter, instead of a dutiful son, I would have received that deduction. That makes no sense." It was from that brief, that the tax court gleaned the taxpayer might be raising a constitutional objection. Mr. Moritz's one page submission remains, in my mind, the most persuasive brief I ever read. 

When I went into the big room next door and I handed the tax code advance sheet to my spouse and said, "read this," Ruth replied with a woman friendly snarl, "I don't read tax cases." I said, "read this one" and return to my little room. Not more than five minutes later, it was a short opinion, Ruth stepped into my little room and with the broadest smile you can imagine said, "Let's take it." And we did. Ruth and I took the Moritz appeal pro bono, of course. But since the taxpayer was not indigent, we needed a pro bono organization. We thought of the American Civil Liberties Union. Mel Wolf, the ACLU's then Legal Director naturally wished to review our proposed Tenth Circuit brief, which in truth was 90% Ruth's and the rest mine. When Mel read the brief he was greatly persuaded. A few months later, the ACLU had its first sex discrimination equal protection case in the U.S. Supreme Court.

As many of you will recall, it was titled, Reed v. Reed, remembering Moritz, Mel asked Ruth if she would take the lead in writing the ACLU's supreme Court pre on behalf of appellant Sally Reed. Ruth did, and reversing the decision of the Idaho Supreme Court, the U.S. Supreme Court unanimously held for Sally. Good for Sally Reed and good for Ruth, who decided thereafter to hold down two jobs, one was a tenured professor at Columbia, where she had moved from Rutgers, and the other as head of the ACLU's newly created Women's Rights Project.

Now back to Moritz. The Tenth Circuit, Judge Holloway writing for the panel found Mr. Moritz to have been denied the laws' equal protection and therefore reversed the tax court and allowed Charles E Moritz's $600 deduction. Amazingly, the government petitioned for cert, the Tenth Circuit's decision, the government asserted, cast a cloud of unconstitutionality over literally hundreds of federal statutes. Laws that, like old section 214 of the tax code, differentiated solely on the basis of sex. In those pre-personal computer days, there was no easy way for us to test the government's assertion. But Solicitor General Erwin Griswold took care of that, by attaching to his cert petition, a list generated by the Department of Defense's mainframe computer of those hundreds of suspect federal statutes. Cert was denied in Moritz, and the computer list proved a gift beyond price. Over the balance of the decade in Congress, the Supreme Court, and many other courts, Ruth successfully urged the unconstitutionality of those statutes. 

So our trip to the Tenth Circuit mattered a lot. First, it fueled Ruth's early 1970s career shift from diligent academic to enormously skillful and successful appellate advocate, which in turn led to her next career on the higher side of the bench. Second with Dean Griswold's help, Mr. Moritz case burnish the litigation agenda Ruth actively pursued until she joined the DC Circuit in 1980. All in all, great achievements from a tax case with an amount in controversy that totaled exactly $296.70. 

As you can see, in bringing those tax court advance sheets to Ruth's big room 40 years ago, I changed history for the better, and I shall claim thereby rendered a significant service to the nation. I have decided to believe it is this significant service that led to my being invited to speak to you today. And even if you had in mind, a topic a little less cosmically significant and substantially more humorous, such as the Supreme Court's performance in tax cases, Ruth and I are truly delighted to be back with you in the Tenth Circuit once again.

Gregory Kerwin  14:10

Justice Ginsburg, thank you for this unforgettable moment. 

Leah C. Schwartz  14:15

This episode was produced and edited by Tina Howell. Subscribe and download at the Historical Society's website www.10th circuit history.org or at Apple podcast Spotify or Stitcher.  

Tina Howell  14:27

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

14:33

Thanks so much for listening