Appellate Advocacy 101: On the Basis of Sex

Last night, I watched On the Basis of Sex with first-year law students.  Munching on popcorn and candy, the students learned about Justice Ruth Bader Ginsberg and her first gender-discrimination case, Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir. 1972).  Moritz challenged section 214(a) of the Internal Revenue Code, 26 U.S.C. § 214(a) (1954), because it precluded him, as an unmarried man, from claiming a caregiver deduction despite caring for his elderly mother.

On the Basis of Sex provides 1Ls with an excellent introduction to appellate advocacy.  The movie begins with Ginsberg’s first day of law school, then chronicles her writing her first brief and delivering her first oral argument.  After the movie, I discussed with the first-year students how the movie compares with what they will do when they receive their first appellate problem in a few weeks.  Below are some of the lessons learned.

Appellate Practice Is a Lot of Work

Most of the movie occurs outside the courtroom.  Students saw Ginsberg meet with Moritz to discuss taking an appeal.  They saw her strategize with other attorneys about arguments.  She works with her husband, a tax attorney, and her staff and students at Rutgers Law School.  She researches, writes, and rewrites the appellant’s brief.  When appellee’s brief arrives with an appendix of over six hundred federal laws that distinguish between men and women, Ginsberg and her team look up and discuss each one.  She takes a settlement offer to her client.  Before oral argument, Ginsberg practices before a moot court and then before a mirror.  Ginsberg works hard.  The process takes a long time. 

Oral Argument Is a Little Scary

The climax of the movie is during the final minutes when the parties argue before the Tenth Circuit.  Students noted how different oral argument looks from the trials they had seen on TV.  There is no jury.  A lone attorney stands before a panel of three judges.  They remarked how Ginsberg was nervous and awkward at first.  The judges directed the course of the argument.  They interrupted with questions. 

The students began to imagine what it will be like when they argue in April.  We discussed how preparation goes a long way toward easing nerves.  I shared that they will have the opportunity to practice before moot courts organized by our Moot Court Honor Society.  I encouraged them to practice in front of a mirror like Ginsberg.  I shared that it is normal to be nervous, especially for your first argument.   

One Case Can Be Two Different Stories

The underlying dispute in Moritz involved the denial of a tax deduction because the taxpayer did not meet the qualifications in the tax code.  The law was clear.  Mr. Moritz did not qualify for the caregiver deduction because he was an unmarried man.  Had he been a woman, divorced, or a widower, he would have been eligible for the deduction. 

The students observed how the lawyers (arguing for the IRS) and Ginsberg (arguing for Mr. Moritz) told two different stories based on the same case.  The IRS portrayed Mr. Moritz as a tax cheat.  Ginsberg held him up as a loving and devoted son.  The IRS, armed with one hundred years of precedent, argued that the Tenth Circuit should protect society by maintaining the status quo on gender.  Ginsberg advocated for new law because precedent had failed to keep up with society’s evolving views on gender.

During oral argument, the IRS argued that “radical social change” is something to be feared and must be stopped.  Ginsberg picked up on this point during her rebuttal.  She argued that “radical social change” had already happened and the Tenth Circuit should bring the law into alignment with that change.  Students were struck by this exchange.  Each side used the same words to make two very different points.

At the end of the evening, students left our gathering excited, inspired, and a little nervous.  I’m grateful to have had the opportunity to introduce them to appellate advocacy in such a fun way.  Ginsberg remarks at one point during the film that by teaching law students she hoped to inspire the next generation of lawyers.  Through this movie, Justice Ginsberg is still doing just that.