An Historian’s Review of “On the Basis of Sex”

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First a disclaimer: While I have a PhD in US history and teach 20th century history every semester, I do not specialize in legal history, women’s rights, the career of Ruth Bader Ginsburg, or even modern U.S. history.  I’m far from an expert on those topics. That said, I found the historical accuracy of the new biopic On the Basis of Sex to be praiseworthy, but better still, it’s just a darn good movie that reminds us that most of our rights have come from people fighting for more than what our Founding Fathers intended.

I’ve been excited about seeing the film since the trailers started running several months ago, but alas my college town is not one of the chosen ones when films open in “select cities.” It was only this past week that it went nationwide, so I joined a couple of my fellow historians and caught it on a Saturday night when my local mutliplex was bustling with a large crowd of diverse filmgoers. Most were there to see the latest action flicks, comedies, and family films, of course,  but I was pleasantly surprised by both the number of people there to see On the Basis of Sex, as well as the diversity in the audience.  Excellent. Different races, genders, and ages were represented, and I even had two families with young children sitting behind me.  While that wouldn’t be surprising in a big budget action film, it was encouraging to see for a history film about a modern feminist icon.

On the Basis of Sex tells the story of Supreme Court Justice Ruth Bader Ginsburg’s path toward becoming one of the most successful legal champions of gender equality, from her early days in law school to one of her first successful cases before a circuit court.

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1 of only 9 women in her 1956 Harvard class of over 500

Along the way, we learn  the important role her husband played in her career (It’s nice to see a flip on the normal Hollywood script of a male protagonist with a doting and supportive wife. Here it’s the other way around), but more importantly, her legal battle plan for taking on sex discrimination.

A little history: Ruth Bader Ginsburg understood that Thurgood Marshall and the NAACP’s success in Brown V. Board of Education came because the building blocks of legal precedents were in place before that landmark decision. The problem in the war against sex discrimination, however, was that when Ginsburg started her fight, the legal precedents did not exist. What did exist, however, were hundreds of laws nationwide that differentiated between the sexes, many of which restricted the rights of women.

Lawyers like Dorothy Kenyon and Pauli Murray had argued for gender equality in the past, but had been unsuccessful, Ginsburg felt, because America’s culture was not ready for it. As she has noted, “the courts are seldom out in front of social change.”

Yet by the late 60s and early 70s, a cultural revolution had begun to bring about a social change for women, so Ginsburg set about to build the legal precedents for gender equality, one case at a time.

“I [saw] myself as kind of a kindergarten teacher in those days,” she explained in the recent critically acclaimed documentary, RBG, “because the judges didn’t think sex discrimination existed.” This required her to hone a non-confrontational yet educational argumentative style that served her well, all the way to her current seat on the Supreme Court.  In lower courts and often before the Supreme Court in the 1970s, she successfully built a string of legal precedents which interpreted the 14th amendment as providing equal protection for citizens regardless of gender.

“My expectation,” she explained in RBG, “was that I would repeat that argument maybe half a dozen times. I didn’t expect it to happen in one fell swoop. I think generally in our society, real change, enduring change, happens one step at a time.”

On the Basis of Sex focuses on just one of the first steps, Moritz v. Commissioner of Internal Revenue. In it, Ginsburg and the A.C.L.U. did something seemingly ironic, taking on the case of a gentlemen for whom the law discriminated against in a tax-deduction law because he was a man.

Though not in the film, this case was not the only time Ginsburg used discrimination against men to build legal precedent for the unconstitutionality of sex discrimination (one case even included some frat bros challenging a law that allowed women to buy beer at a younger age than men!). This was not reverse psychology, it was constructing important legal building blocks that challenged gender-based discrimination.

On the Basis of Sex is an entertaining film that works because of a uniformly fine cast with particularly solid performances from Felicity Jone as Ruth, and Armie Hammer as her husband Martin. They make for a very attractive couple, which was true of the real life Ginsburgs.

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But so too were the real Martin and Ruth Bader Ginsburg

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Hammer & Jones, a good looking pair.

The set designs and wardrobes are subtly authentic (they don’t over-the-top scream “This is the 50s. This is the 60s! This is the 70s!” as we get in so many other films and shows), the story pacing feels just right, and the dialogue sounds true-to-life. The film also works on several levels; as love story, social commentary, and courtroom drama.

 

So is it accurate?

Warning: Some spoilers coming next. You might want to see the film before proceeding—

As with most history movies, the film has to simplify and condense some elements in order to suit the needs of a well-paced and dramatic two-hour story (something that all-too-often annoys historians as they nit-pick a film’s accuracy). In this case, most of these factual distortions are pretty minor (for examples, Ruth didn’t actually spur-of-the moment fly out to Denver to meet her client, the ACLU was not as reluctant to take the case as portrayed, there was never a moot court that led them to decide on splitting the argumentation between the husband and wife).

The biggest bending of the facts are understandable and forgivable. In truth, Dorothy Kenyon and Pauli Murray

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Ginsburg & daughter meet with Dorothy Kenyon (Kathy Bates).

were not involved in the case as depicted in the film (the above mentioned distortions were created for the purpose of getting them in the story). In real life, their names were added to the legal brief as a show of respect and acknowledgement of their pioneering work, and thus their additions in the movie come from the same honorable motive.

Further, the climactic court room scene before the Tenth Circuit Court of Appeals features a dramatic moment when Ginsburg gets a bit rattled by the challenging questions she received from the circuit justices. This requires her to buck up her resolve and find her voice, dramatically winning over the court during rebuttals. That’s all hogwash, as Ginsburg never actually faced that moment of weakness, she took control of the proceedings with her powerful argumentation from the outset.

Still, we can forgive the screenplay’s punching up of the drama (it was written by Ginsburg’s nephew, Daniel Stiepleman), as it gives the film some tension-filled moments that ramp up the triumphant tone of the ultimate victory. I’m ok with that, it’s a movie that has to sell tickets. Unlike some historians, I sympathize with films taking a little dramatic license, as long as the the greater historical truth is told. That’s very true in the case of On the Basis of Sex.

The climactic moment in the film prominently features a quote that shows up in the movie’s commercials and trailers, and it seemingly challenges the assertion that On the Basis of Sex is accurate. In response to a judge’s assertion that the word “woman” does not appear in the Constitution, Ginsburg dramatically reminds the court, “nor does the word freedom.”

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“Nor does the word ‘freedom,’ your honor.”

A knee-jerk reaction might be to point out that it DOES appear in the Bill of Rights, certainly that makes it in the Constitution.

Uh oh! Major error?

But the scene requires context. The unamended version of the Constitution in fact does not include “freedom.” Thus Ginsburg was reminding the court of something I try to remind my students of every semester. Our Constitution is not restricted by its framer’s values. It can, and has been amended to extend its rights and protections to people that our founders excluded.

Praise be! Otherwise, as I tell my students, many African Americans would still be legally enslaved, women would have few rights, and only white male landholders would have the right to vote!

Thus the line is not inaccurate and is in fact a powerful reminder that part of the story of our nation’s history has been the extension of rights beyond original intent.

While the movie ends there, the Moritz victory led to Ginsburg’s other 1970s victories in bigger and more important cases, most immediately Reed v. Reed (which the film shows Ginsburg writing the legal brief for, building on the Moritz case’s argumentation). Ending the film with this early triumph provides it with an appropriate running time and victorious moment, yet misses the challenges Ginsburg and the women’s right movement faced in the 1970s from conservative forces like Phyllis Schlafly.

The film’s focus also allows it to sidestep Ginsburg’s sometimes controversial thoughts on Roe v. Wade. While certainly not an opponent of the decision, she’s famously expressed the belief that grounding its argumentation in the right to privacy, rather than as a matter of equal protection, made it a questionable ruling without enough precedent to make it more firm. “Doctrinal limbs too swiftly shaped,” she has argued, may prove unstable.” Further, “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.”

These sentiments (as well as a more moderate reputation she earned while on the DC Circuit Court–voting more with Republican appointees than Democrats and straying little from precedent) are part of the reason why many feminist groups initially privately opposed Ginsburg’s nomination for the Supreme Court.

But will the ongoing shift in the court’s make-up ultimately prove Ginsburg to have been correct about Roe v. Wade? Should it have been based more firmly on the precedents she established?

Also in light of current events, another thing that struck me about On the Basis of Sex stems from it reminding us in the ending titles that Ginsburg was confirmed by the Senate, 96-3. This seems most remarkable now, and it is, especially considering she was a Clinton appointee. Of course her confirmation was a breath of fresh air that the nation needed after the Clarence Thomas/Anita Hill tawdriness, and that likely played a role in the vote count.

And yet the tally still tells us much about how our current polarization has unfortunately politicized our court, certainly not what the Founders intended for it. During Ginsburg’s confirmation hearing, Senator Orrin Hatch told her, “I disagree with you on a number of things, and I’m sure you disagree with me. But that isn’t the issue, is it? And frankly, I admire you. You’ve earned the right, in my opinion, to be on the Supreme Court.”

Can you imagine Hatch or very many other senators saying something like that now?

Anyway, go see On the Basis of Sex, it is an accurate and timely reminder that not all of our nation’s heroes have been men, that protests and cultural revolutions often have to precede changes to the law, and that the expansion of rights in this country has had to be fought for by those wiling to buck the system established by our Founding Fathers.

Twitter: @GlennBrasher

 

 

 

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