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Film Review: On the Basis of Sex

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About The Author

Malvika Jaganmohan (Regular Writer)

Malvika is a pupil at Coram Chambers with a particular interest in family law and access to justice. Outside the law, Malvika can usually be found with her nose in a book (with a soft spot for romantic novels and detective fiction) or trying her hand at various creative hobbies with little success. 

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© On the Basis of Sex

I would like to be remembered as someone who used whatever talent she had to do her work to the very best of her ability

Ruth Bader Ginsburg

There’s no doubt about it: the legal community is currently in the grip of Ruth Bader Ginsburg mania. The associate justice of the US Supreme Court has taken on something of a cult status in the last few years, fuelled in no small part by a Tumblr account which dubbed her the ‘Notorious R.B.G’. Last Friday, she celebrated her 86th birthday, with supporters across the world taking snapshots of themselves planking, a nod to the judge’s famously gruelling training regime.

On The Basis of Sex has been timed perfectly to coincide with the renewed burst of interest in the judge, who has become well-known for her sharp-tongued and highly memorable dissenting judgments. It comes in the wake of another Ginsburg documentary, RBG, which traces her early life and her rise to becoming a Supreme Court justice. The documentary won critical acclaim, and rightly so: it cut through the myth of Ginsburg as a sassy rebel, a myth built by many liberal millennials via Tumblr, through to the far more nuanced human being underneath. We saw the reserved, determined Ginsburg as she worked her way through law school, managing the care of her young child alongside attending lectures both for herself and her sick husband who was then struggling with testicular cancer. We saw her blossoming relationship with her devoted husband, Marty, the warm, gregarious counter-balance to Ginsburg’s own restrained presence. We saw the rise of her RBG status in popular culture, with a bemused and slightly bewildered Ginsburg commenting:

I am 84 years old. And everyone wants to take a picture with me.

So, off the back of the RBG documentary, expectations for On The Basis of Sex were high. But before I start moaning, I’ll start with the good stuff.

Ginsburg has been held up as a poster girl for radical, liberal values. However, the film does a great job of breaking this down to show that, in many ways, she is very 'establishment'. In one sharp-tongued exchange with her ‘right on’ daughter, Jane, she scolds Jane for skipping school to attend a protest to watch Gloria Steinem. With the typical carelessness of a teenager, Jane shoots back at Ginsburg’s academic career, telling her it’s "not a movement if everyone’s sitting. That’s a support group”. 

It’s important to remember that Ginsburg was not one to take to the streets àla Gloria Steinem. She is a meticulous jurist, not a banner-wielding revolutionary. Prior to her appointment to the Supreme Court, Ginsburg told the Senate Judiciary Committee that her approach to the work of judging is “neither liberal nor conservative” and that a judge should administer the law “without fanfare, but with due care”. Ginsburg has also espoused the importance of restraint and of a measured approach to the law: “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.” With an attitude that is very much out of line with the anger and passion that we would normally associate with grassroots activism, Ginsburg advocates incremental change, baby steps which build consensus rather than burning bridges. Irin Carmon describes Ginsburg’s vision as such:

Have a radical aim, but proceed with caution.

Ginsburg has also issued controversial public opinions that are diametrically opposed to the liberal, friend-of-the-oppressed cult of personality that surrounds her. In 2016, she described Colin Kaepernick’s decision to refuse to stand for the national anthem in protest against the treatment of African-Americans “dumb and disrespectful”. In an article for Slate, Mark Joseph Stern hits the nail on the head by observing:

She is not a rabble-rouser and probably does not know any rabble-rousers, [Sonia] Sotomayor excluded. Her burgeoning reputation as a boat-rocker or even an iconoclast is exaggerated. She idolizes an older era of civil rights heroes, who effected change through orderly marches, carefully calculated lobbying, and brilliant legal strategizing.

The film captures this tension between Ginsburg’s radical goals and her very un-radical means. In yet another heated exchange between Ginsburg and Jane, Ginsburg denounces To Kill A Mockingbird’s Atticus Finch as a “terrible lawyer” for covering up Bob Ewell’s murder. “It’s called justice, mom,” cries an outraged Jane. Ginsburg replies, sternly: “What’s just to you may not be just to me or to someone else.” Ginsburg has no interest in breaking the system, but instead focusses on achieving small victories within the system, one case at a time.

The film – miraculously – manages to make tax law somewhat exciting (no offence to the tax lawyers out there). It focuses on one case in Ginsburg’s early career - Charles E. Moritz, Petitioner-appellant, v. Commissioner of Internal Revenue (1972) - in which she challenged a legal provision that prevented a man from qualifying for a caregiver exemption under the tax code. Prior to Moritz, the law was unable to fathom the prospect of a man who may want to care for his dependents. Ginsburg argued successfully that this was sex-based discrimination. 

The film captures the wheels of strategic litigation turning in Ginsburg’s mind. She recognises this as a valuable test case for achieving her long-term goals of being able to combat discrimination towards women by championing the equal rights of her male client. “If a federal court rules that this law is unconstitutional,” she says to Marty in delight, “it would become the precedent others refer to and build on. Men and women both. It could topple the whole damn system of discrimination.”

On the Basis of Sex also shows a more vulnerable side to Ginsburg. Unable to find work as a practising lawyer, Ginsburg turns to academia. When she takes on Moritz many years later she lacks confidence in her abilities as an advocate, becoming frustrated and emotional in moot court whilst practising her submissions. “You’re screwing it up!” cries an impatient Mel Wulf, then legal director of the American Civil Liberties Union (ACLU). The humiliation is only compounded by Marty Ginsburg intervening to help, years of practised advocacy coming to the fore as he demonstrates how Ruth could respond tactfully to judicial intervention.

So where does the film take a wrong turn? In short, it’s hard to swing a cat in the theatre without whacking into another flying cliché. There’s Ginsburg in the pouring rain, watching with awe as her daughter berates a couple of builders for cat-calling them, before running over to make an impassioned speech about how change is already happening! There’s Ginsburg cutting a cocky male student down to size in the middle of a classroom at Harvard Law School, standing defiantly in a sea of testosterone.

Perhaps worst of all is the climax, in which Ginsburg and her husband finally present their carefully-constructed arguments to the 10th Circuit Court of Appeals. Ginsburg stumbles over her words and makes a completehash of her case only to have a eureka moment before delivering a perfectly poised, cutting rebuttal just when it’s needed. High drama indeed, though apparently not what happened. Daniel Stiepleman, Ginsburg’s nephew and the film’s writer said, “Ruth Ginsburg never flubbed an argument in her life”. According to Ginsburg, there wasn’t even any rebuttal, though she felt the dramatic final sequence “fits in very well the way it is portrayed in the film”. Well, I’ll have to respectfully disagree on that point, not least because I was thoroughly unimpressed by the depiction of a highly competent female lawyer as a drippy sack of jangling nerves, especially alongside her charismatic and perfectly held together (male) co-counsel.

Cheap Hollywood tactics are the nail in the coffin of this particular biopic. On The Basis of Sex is watchable but not particularly memorable. Take my advice and opt for the RBG documentary instead.

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