On February 5, 1937, President Franklin D. Roosevelt shocked America by introducing a plan to expand the Supreme Court, to gain favorable votes. FDR’s war on the court was short-lived, and it was defeated by a crafty chief justice and Roosevelt’s own party members.
President Roosevelt had enacted wide-ranging legislation along with congressional Democrats as part of his New Deal program, starting in 1933.
By 1937, Roosevelt had won a second term in office, but the makeup of a conservative-leaning Supreme Court hadn’t changed since he took office four years earlier. There were four Justices who were conservative enough that their votes against most New Deal plans were expected. A fifth justice with conservative leanings was the Chief Justice, Charles Evans Hughes, who also narrowly lost the 1916 presidential race to the Democratic incumbent, President Woodrow Wilson.
However, Hughes also had roots in the progressive wing of the Republican party. Another justice, Owen Roberts, was a Hoover appointee who also voted with the conservatives on some decisions.
Adding to the tension between the president and the Supreme Court were a series of decisions by the Justices that halted key components of the New Deal. After his re-election, Roosevelt developed his plan in secrecy, working with his attorney general, Homer Cummings, on a way to ensure the court would rule favorably about upcoming cases on Social Security and the National Labor Relations Act.
By passing a law that would allow the President to appoint an additional Justice for every sitting justice who was over 70 years of age, Roosevelt could add six of his own Justices to the court. With two liberals already on the bench, that would put the odds in FDR’s favor.
While the idea may seem outlandish today, President Roosevelt must have felt the Judicial Procedures Reform Bill of 1937 stood a good chance of success. The President used one of his fireside chats in March 1937 to make his case to the American people.
“This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done,” Roosevelt said.
However, many Americans believed the high court was sacrosanct, and opposition to the plan steadily built inside Washington. It wasn’t assured that the proposed law would even make it out of committee for a vote on the Senate floor.
On March 10, Cummings testified before the Senate Judiciary Committee. “We want an independent judiciary, but we want a judiciary that will permit the country to move,” Cumming said. A week later, more testimony before the committee stuck a fork in the bill.
Senator Burton Wheeler read a letter from Chief Justice Hughes to the committee, which explained the need for an independent Supreme Court and debunked much of the logic behind the bill and Cummings’ testimony. An additional signer on the Hughes letter was the liberal justice, Louis Brandeis.
In the diaries of Harold Ickes, a key FDR adviser, the letter’s effect was duly noted. “This letter, without expressing itself as to the policy of the president’s plan, sought to prove in great detail that the court did not need any extra help to handle its work since it kept right up with its docket. It then went on to Congress the opinion that more judges would make for inefficiency and delay. It was good tactics,” Ickes said.
So within five weeks of the President’s announcement, the court-packing plan, as it came to be known, was heading toward a dead end in the Senate. By June 1937, the Judiciary Committee had sent a report with a negative recommendation to the full Senate. “The bill is an invasion of judicial power such as has never before been attempted in this country. … It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government,” the report read.
Its conclusion was even more direct: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
In the meantime, changes were afoot that made sure the whole idea of a court-packing plan wasn’t coming back in the Roosevelt administration. The Roosevelt administration was on the winning side of three court decisions involving the minimum wage, Social Security, and the National Labor Relations Act, when Justice Owen Roberts began voting with the more liberal justices.
A key conservative justice, Willis Van Devanter, also decided to retire. And by July 1937, the Senate tabled the court-packing debate for good. Its chief lobbyist in the Senate, Majority Leader Joe Robinson, died of a heart attack. Robinson had fought hard to ensure passage of the court-packing bill, and without his support, the measure was effectively finished.
In the end, President Roosevelt outlasted seven of the nine Justices who sat on the bench in 1937.
Moritz v. Commissioner of Internal Revenue was the first gender-discrimination suit Supreme Court Justice Ruth Bader Ginsburg argued in court
Ruth Bader Ginsburg has become, in her 25th year on the Supreme Court, a bona fide pop-culture icon. She has pithy comebacks (slipped into precisely worded dissents), superhuman strength (she can do 20-plus pushups), and an instantly recognizable getup (black robe, lacy collar, scrunchie). Now On the Basis of Sex, a Ginsburg biopic starring Felicity Jones as Ginsburg and Armie Hammer as her husband, Martin, is hitting theaters on Christmas Day with the aim of bringing to light her early legal career for those who might not know much about it. The film focuses on the very first gender-discrimination case Ginsburg argued in court, long before “SNL” started devoting sketches to her legal acumen: Moritz v. Commissioner of Internal Revenue.
Moritz doesn’t number among the landmark gender-discrimination cases Ginsburg argued before the Supreme Court—it’s a lesser-known tax law case argued in the Tenth Circuit Court of Appeals over an up-to-$600 tax deduction for caregiver expenses. The film’s screenwriter Daniel Stiepleman, who is also Ginsburg’s nephew, said in an interview with The Wrap that he chose the case as the terra firma for his script because “the political and the personal were intertwined”: The future justice argued Moritz alongside her husband. But Moritz’s significance surpasses its narrative appeal. In winning a 63-year-old bachelor a minor tax refund, Ginsburg “found her foundational argument” against sex-based discrimination, says Jane Sharron De Hart, a professor emerita of history at University of California, Santa Barbara and the author of a biography of the justice.
Ginsburg’s Brooklyn upbringing (and the influence of her mother Celia) taught her not to limit her view of what women could accomplish, according to De Hart, but her path to women’s rights law was circuitous. She met Marty, a chemistry major, at Cornell, and the couple decided to enter the same field. De Hart relates that they considered business school, but Ruth pushed for law school, and after their marriage, Marty’s military service, and the birth of their daughter, Jane, the Ginsburgs wound up at Harvard Law School. There were only eight other women in her class.
Institutional sexism wasn’t the only barrier Ginsburg encountered. While Marty received treatment for testicular cancer in 1958, Ruth took on his coursework as well; when he landed a job in New York, she transferred to Columbia Law School. Along the way, she shattered glass ceilings and racked up accolades: first female member of the Harvard Law Review, tied for first in her class at Columbia. Come graduation, though, she found herself shut out from job opportunities until a Columbia professor flat-out refused to suggest any other clerkship candidates but her for a position under a New York District judge. “I was Jewish, a woman, and a mother. The first raised one eyebrow; the second, two; the third made me indubitably inadmissible,” she said later. After her clerkship, she entered academia, first studying civil procedure in Sweden and then becoming a professor at Rutgers Law School’s Newark campus.
As Ginsburg made her name in civil procedure, the basis of her work on behalf of women’s rights shifted into position. “Her view of feminism was very firmly shaped by Swedish feminism, which argued that to be both fully human, both men and women had to share in parental responsibilities and the burden and compensations of work,” explains De Hart. During the 1960s, Ginsburg read Simone de Beauvoir’s The Second Sex, a cornerstone feminist text, and her students at Rutgers requested she teach a class on women and the law. In 1970, Ginsburg obliged and studied up accordingly. “Inside of a month I had read every federal decision ever written relating to women’s rights, also some state court decisions. That was no great feat, for there were precious few of them,” she said in a 2009 interview.
“It can be difficult in 2018 to imagine that so many laws distinguished between men and women or that so many laws restricted the rights of women, but that is where we were,” says Suzanne Goldberg, a professor at Columbia Law School. These laws ranged from the serious (widowers, assumed to be the family breadwinners, could not receive social security benefits from deceased wives, a provision of the Social Security Act Ginsburg would go on to challenge before the Supreme Court) to the downright absurd (in Wisconsin, female hairstylists couldn’t cut men’s hair). The Equal Pay Act, passed in 1963, was the first piece of federal legislation to prohibit sex-based discrimination. While the women’s liberation movement urged social change, around one-third of respondents to the 1972 General Social Survey (35 percent of men, and 28 percent of women) said they disapproved of a married woman working if her husband could support her.
Ginsburg chipped away at this legal precedent starting with small-potato ACLU cases in Newark, New Jersey. In one instance cited in Yale senior lecturer Fred Strebeigh’s book Equal: Women Reshape American Law, an ACLU intern and former student of Ginsburg’s sent her the case of Nora Simon, a woman unable to re-enlist in the military because she’d had a child, even though she’d put that child up for adoption after divorcing her husband. These local cases helped individuals—Ginsburg’s assistance enabled Simon to rejoin the armed forces—but weren’t shifting case law.
Moritz changed that. In the movie, the scene plays out in the same way the Ginsburgs have recounted it: in the fall of 1970, the couple was working in separate rooms in their house when Marty stumbled upon a tax court case and presented it to his wife. “Ruth replied with a warm and friendly snarl, ‘I don’t read tax cases,’” Marty wrote. But she read this one. A Denver bachelor named Charles Moritz, whose job in publishing required frequent travel, had represented himself in tax court and lost. He’d argued that it was unfair to deny him a tax deduction for the money he’d paid a caretaker for his 89-year-old mother, who was his dependent, simply because he was man who’d never married, when a single woman in the same situation would be entitled to the tax break. “This tax law sought to give a benefit to people who had to care for dependents,” explains Goldberg, “but could not imagine that a man would be doing so.”
It was a perfect test case. Marty worked to persuade Moritz to appeal and commit to taking the case to court to set a precedent even if the government offered to settle (which it did). Ruth secured a fiscal sponsor for the project, writing to an old summer-camp acquaintance at the ACLU, Melvin Wulf (played in the film by Justin Theroux), that she’d hit upon “as neat a craft as one could find to test sex-based discrimination against the Constitution.” Ginsburg penned a 40-odd-page brief, split the argument in the 10th Circuit Court of Appeals with Marty (he took on the tax law for the first 12 minutes of the oral arguments; she, a courtroom novice, made the constitutional half of the case), and in November 1972, over a year later, the court ruled for Moritz, determining that the code made an “invidious discrimination based solely on sex” and therefore opposed the Fifth Amendment’s guarantee of due process. It was the first time a provision of the Internal Revenue Code had been declared unconstitutional.
Moritz “could topple the whole damn system of discrimination,” Ginsburg’s character exclaims in On the Basis of Sex. In reality, another case set that precedent first as the 10th District dawdled: Reed v. Reed, a 1971 decision that marked the first time the Supreme Court struck down a law on the grounds of gender discrimination, finding that it violated the 14th Amendment’s equal protection guarantee. Ginsburg helped clinch the landmark victory, not by arguing the case before the Court but by building upon the arguments she’d developed a few months earlier for Moritz—in her words, Reed’s “fraternal twin.”
In the spring of 1971, Ginsburg had sent her just-completed Moritz brief spelling out the constitutional argument against gender-based discrimination to other attorneys, including the ACLU’s general counsel, Norman Dorsen. Dorsen replied that it was “one of the very best presentations I have seen in a long time,” and sent that high praise along to Wulf. As Strebeigh’s book tells it, Ginsburg also mailed a copy of that same brief to Wulf and suggested that it might be useful in Reed, an upcoming case that revolved around a woman not being allowed to execute her dead son’s estate due to her gender, to the Supreme Court. “Have you thought about whether it would be appropriate to have a woman co-counsel in that case???” she ended the letter. Sally Reed’s original lawyer argued the case in court, but Ginsburg wrote a lengthy, social-science-stuffed brief, and, as a tribute to her legal predecessors, listed two influential feminist lawyers, Dorothy Kenyon and Pauli Murray, as co-authors.
In 1972, Ginsburg became the first woman named a full professor at Columbia Law School and also the co-director of the ACLU’s fledgling Women’s Rights Project (alongside Ms. Magazine cofounder Brenda Feigen). Moritz also, unexpectedly, gave her a blueprint for the lawsuits the WRP would use to incrementally strengthen the legal case against gender-based discrimination. When the Ginsburgs won Moritz, the solicitor general, none other than Ruth’s former Harvard Law School dean Erwin Griswold (who’d not allowed Ginsburg to receive a Harvard Law degree when she’d transferred to Columbia) unsuccessfully petitioned the Supreme Court to take the case. 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.) In Ginsburg’s words, “It was a treasure trove.”
From there, the story charts a familiar course; Ginsburg went on to argue six gender-discrimination cases before the Supreme Court, winning all but one. She was appointed to the D.C. Circuit Court of Appeals in 1980 and the Supreme Court in 1993, where she writes crackling dissents defending reproductive autonomy and affirmative action.
On the Basis of Sex ends with a shot of the young Ruth Bader Ginsburg walking up the steps of the Supreme Court before the camera pans to show RBG today on the marble stairs. The metaphor, while on-the-nose, is apt. In Moritz and Reed, says De Hart, the future Supreme Court justice “really thought through her demeanor and motives for all her future arguments. She would try to educate, she would not be confrontational or emotional, but she would try to bring the judges along to see the injustice of men not being able to get a benefit that women in comparable situations could get.”
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A new college-level course, on “The Supreme Court and American Politics,” went online this month with scores of students from around the world already signed up. The course, prepared by Lyle Denniston, a contributor to Constitution Daily for the past seven years, is free.