Ask people to tell you the most important U.S. Supreme Court Case regarding racial discrimination and the future Supreme Court Justice who argued it, and many of them, even non-lawyers, will tell you Brown v. Board of Education and Thurgood Marshall respectively. But ask those same people to tell you the name of any federal court case regarding sex discrimination and the future Supreme Court Justice who argued some important sex discrimination cases, and you would likely be greeted by blank stares on the first and a few blind guesses of Ruth Bader Ginsburg on the second. To elevate public awareness of that critical struggle in the courts, director Mimi Leder has made the second film this year about Ginsburg, On the Basis of Sex, a flawed but instructive and crowd-pleasing movie.
Before discussing On the Basis of Sex at length, I should note that the screenplay was written by Daniel Stiepleman, who is Ginsburg’s nephew. Further, various drafts of the script were reviewed multiple times by Ginsburg and her attorney daughter Jane (who, as a teenager, is also a character in the movie). So, like the recent Green Book, whose script was written by Nick Vallelonga, the son of the main character, Stiepleman has both emotions about his aunt and the subject matter, and some extensive firsthand resources to call upon. Unfortunately, while Vallelonga was a veteran director and screenwriter, Stiepleman is a novice, and his inexperience shows in the script’s overreliance on clichés and conventions.
On the Basis of Sex focuses on the first 15 years of Ginsburg’s legal career. The film begins with Ruth (Felicity Jones) and husband Marty (Armie Hammer) as Harvard law students, where she soon butts heads with the dean, Erwin Griswold (Sam Waterston), who doesn’t think women have much of a place in the legal profession. Despite Griswold’s disdain, Ruth excels in her classes. Later, when Marty is stricken with testicular cancer, she audits his classes in addition to her own as he recuperates. When Marty, who is a year ahead of Ruth, graduates and takes a job with a top New York City law firm, Ruth transfers to Columbia for her final year, only to learn that Dean Griswold won’t grant her a Harvard degree, despite making similar allowances for men in the past.
Ruth also finds that the New York City legal employment market is actively hostile to women lawyers, and she is rejected by over a dozen firms, despite having been on both Columbia and Harvard Law Reviews (the first woman to do so). Instead, she takes a job teaching law at Rutgers. Ironically, she only gets the offer because, after the former professor, who was black, retired, the school couldn’t find another black man to replace him and thought that hiring a woman was the next best thing.
Over the next decade, Ruth gets involved in the women’s movement, although daughter Jane (Cailee Spaeny) doesn’t think she’s doing enough to help. But Marty finds a tax case involving sexual discrimination that he believes would be an excellent test case for him and Ruth to argue together. The case, which was known as Moritz v. Commissioner of Internal Revenue was unusual because the aggrieved plaintiff was a single man (Chris Mulkey), who hired a nurse to care for his invalid mother at home while he worked. The Internal Revenue Code did not grant him a deduction for those costs because the deduction was limited to women and divorced or widowed husbands but was not available to single men.
Although the legal point was somewhat technical, Ruth is able to persuade a reluctant high school friend Mel Wulf (Justin Theroux), now an official with the American Civil Liberties Union, to back her in taking the case. Although reluctant to bring any sexual discrimination case at a time when ACLU resources are stretched thin already, Wulf eventually agrees. As the case makes its way to the U.S. Court of Appeals in Denver (one level below the Supreme Court) for argument, an alarmed Griswold, now the Solicitor General of the United States and responsible for arguing the government’s case, tried to align as much talent and precedent as possible against her.
For a comprehensive look at the life of Ruth Bader Ginsburg, audiences need go no further than RBG, a likely nominee for the Best Documentary Oscar this year. Instead, the filmmakers chose to focus on this one major case, even though the movie doesn’t mention it for nearly an hour. The earlier scenes accomplish two purposes. They show what Ruth endured throughout her legal career, but they also show the widespread bias against women at the time, even in Ivy League colleges and Wall Street law firms. Further, that bias was often based on misconceptions and preconceptions about the roles of the sexes. Early in the film, Griswold famously asks Ruth and the other women in the class why they are “occupying a place at Harvard that could have gone to a man” (an incident that actually occurred; see clip below). By showing how ingrained these paternalistic notions of the place of women in the family and the workplace actually were, the movie gives audiences an idea of the magnitude of the challenge Ruth faces in court.
On the Basis of Sex also benefits from two strong lead performances. Felicity Jones is winning and determined as Ruth, and she has terrific chemistry with Armie Hammer (who is considerably taller and more handsome than the real Marty was). The portrayal of their marriage as an egalitarian one in terms of division of housework as well as legal expertise showcases how different their marriage was from the societal norm that formed the basis of the laws that Ruth and others were challenging.
Unfortunately, On the Basis of Sex is not merely content to make its points. It distorts history and overplays the drama by ramming those points home over and over. The attorney (played by Jack Reynor) who argues the Moritz case against the Ginsburgs is portrayed as a condescending good old boy who practically calls Ruth “little lady.” And, by the way, as if the actual appellate hearing wasn’t compelling enough drama, director Leder tries to add to the drama by showing Ruth battling insecurity during her oral argument and nearly unable to continue, when, in fact, she presented her case so well that she had no need for rebuttal after the government’s counter-arguments. The worst portrayal of all, from an accuracy perspective, is that of Mel Wulf, in actuality an ardent supporter of women’s rights, who is shown here as at best grudgingly agreeable but still rather sexist (offering suggestions to Ruth about how to conduct herself in court).
One amazing scene in the film is slightly inaccurate but very compelling. In preparing its brief in the case, the government researched the entire U.S. Code to list every law that contained sex-based differences which could potentially be invalidated as a result of an adverse decision. The effort was so intensive that they needed to use Defense Department computers to do the job (this was 1971, after all). There were hundreds of such laws. This list was actually provided by the government (although in a subsequent brief in the case, not in the brief filed before oral argument as the film shows). Griswold hoped that the listing would serve as a cautionary note to the court; instead, it was a roadmap for future litigation.
Popular dramatic movies invariably reach wider audiences than do documentaries, and, for that reason alone, On the Basis of Sex is a valuable viewing experience. But this movie is also a solid legal and personal drama with two likable leads, albeit a film whose plot has been goosed in a somewhat heavy-handed manner by an inexperienced screenwriter. The judgment in this case is in favor of On the Basis of Sex, not by a unanimous decision, but definitely a substantial majority.
