Remembering Justice Ginsburg

I doubt I can add anything to the richly deserved outpouring of praise and admiration for the extraordinary life of Justice Ruth Bader Ginsburg other than to express my heartfelt embrace of those sentiments. I will therefore confine my remarks to the two instances in my life when I was fortunate enough to cross paths with Justice Ginsburg in person, as these reflect both her celebrated legacy as a Supreme Court Justice and her profound humanity. My first encounter with Justice Ginsburg was during my oral argument in Hunt-Wesson Inc. v. Franchise Tax Board,1 which involved the constitutionality of California’s “interest offset” rule. This rule denied a non-domiciliary corporation the benefit of an interest expense deduction by requiring it to allocate its interest expense to nontaxable income regardless of whether the interest expense bore any relationship to the production of that income. Despite the highly technical nature of the issue before the Court, Justice Ginsburg cut to the chase in her first question to me: “Mr. Hellerstein, your position is not that California couldn’t reject any part of this. It could have an offset, but it has to be according to some apportionment, some reasonable apportionment.”2 I was happy to respond as follows: “That is precisely right, Justice Ginsburg. Our position is that there are a wide variety of acceptable methodologies for assigning or allocating income to various jurisdictions.”