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

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.

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.

But so too were the real Martin and Ruth Bader Ginsburg

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

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.”

“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

 

 

 

My Top Ten “Spook Movies” of all time!

As many of you may know, I am a big fan of ghost stories. I enjoy them as folktale, and for what they say about the culture and time from which they emerged. But, I’ll admit I also love them simply because they are fun. Last Halloween I discovered Colin Dickey’s Ghostland: An American History in Haunted Places (winner of a Best Book of the Year Award from NPR).  It was so good that I read it again over the last few nights to get in the Halloween spirit. Dickey is a fine writer with a healthy cynicism about ghosts. He explores many of the more famous American ghost stories that are a product of particular moments in American history, and he effectively roots the tales within solid historical context (such as the rise of spiritualism in the 19th century). He is less interested in the alleged ghosts than he is how these stories came about and how true events help to explain their creation. I cannot recommend the book highly enough.

But for today’s blog I wanted to do something different than I normally do. Besides ghost folklore, I am also a big fan of what I call “spook movies.” These are films about ghosts, and are not horror movies filled with shock and gore. They’re more subtly scary stories about what may or may not be paranormal.  I am most impressed with films that do not utilize a ton of over-the-top special effects, as I am a big believer that nothing has the potential to scare you more than your own mind. With the right lighting, camera angles, sounds, and intelligent storylines, ghost movies can produce a lot of eery fun without cheap shocks or gross visuals.

Every Halloween I enjoy watching such films. They create the perfect mood, staying with you long after the lights go out and you crawl into bed. So in very carefully considered descending order, let me present my top 10 spook movies—all from an historian’s perspective.

10. The Ghost Breakers (1940) and Scared Stiff (1953) 

-Why not start with a little comedy before we descend into darkness? The Ghost Breakers is a Bob Hope film which was remade by the legendary comedy team of Dean Martin and Jerry Lewis as Scared Stiff. I have a fondness for both films because at a young age they introduced me to the joys of ghost movies. Both are played for laughs, but there are some truly creepy moments involving both “zombies” and ghosts. Of the two, Ghost Breakers is superior, with Hope playing a radio show host during the Golden Age of radio broadcasting. It was made at a time when celebrities like him did double-duty as both radio and film stars. (Whenever I teach my classes about the American home-front during WWII, I am dismayed by the increasing number of students who have never even heard of Bob Hope, much less the role he played in entertaining our troops during so many of the 20th century’s wars).  The film also provides a glimpse of how zombies were portrayed in films before George Romero changed the rules with Night of the Living Dead (1968). Prior to that groundbreaking film, zombies were creepy, but essentially harmlessly catatonic and tied to voodoo practices. The film is also set in Cuba before the Cuban revolution, when it was a fashionable tourist destination for wealthy Americans. Shamefully, it features a comedically stereotypical black character such as Hollywood was prone to depicting in the Jim Crow era, reinforcing white America’s racist assumptions. Willie Best’s performance in the major role is laudatory, however. Meanwhile, Paulette Goddard plays a spunky woman who shows much less fear than Hope or Best, and it is her bravery that fuels most of the action. For you that may not know, Goddard was married to Charlie Chaplin and was a finalist for the role of Scarlett O’Hara. (I believe she would have been perhaps equally as stunning in the role as was Vivien Leigh). This one is great to pop in before the kids go to bed.

9. The Innocents (1961). 

Starring the magnificent Deborah Kerr, this film is based on Henry James’s classic novel, The Turn of the Screw. I love it because like most of the movies on this list, it is more psychological drama than horror. A governess in charge of two young children, Kerr becomes convinced that their house is haunted, and/or that the children are possessed. But are they? Or is she just slowly losing her mind? Everything about how to make a truly creepy movie without shock and special effects is on display in this intriguing character study.

8. The Sixth Sense (1999). 

No real reason to say much about this movie because I am sure that most of you are familiar with it.  I like that it is set in Philadelphia, where colonial ghosts abound. And while I was one of those that sensed the surprise twist ending coming, it still carried quite a jolt. The best thing about it, however, is that in an age when CGI special effects could have really sent this movie over the top, director M. Night Shyamalan opted for restraint and traditional special effects. The film is all the more effectively creepy because of it.

7. The Innkeepers (2011)

Okay, here is one that many of you may not have seen even though it is a more recent film. I am not a big fan of most current horror movies because I feel that they rely too much on shock and CGI special effects. Director Ti West’s The Innkeepers is an exception—for the most part. Set in an old New England hotel (filmed in Connecticut’s real-life Yankee Pedlar Inn, founded in 1891), the film is purposely slow at delivering its story and relies mostly on character development. We come to really like the two protagonists, and are fascinated by their interest in capturing proof of the paranormal in a hotel with a ton of history.  The film builds its suspense in the old-fashioned way and, like the hotel itself, seems a product of a bygone era.  There is no use of CGI in it at all! Sadly, I feel that it goes over-the-top in its climactic finale, but like any truly great spook movie, the biggest chills come from what you do not see rather than what you do. (FYI: The cast and crew claims to have had some paranormal experiences while filming the movie at the historic inn).

6. The Shining (1980).

Again there is probably not much to say here about a movie that most have seen.  To me the power in this film is that like The Innocents, it leaves you wondering if the protagonist is simply losing his mind. Some 1920s Jazz-era spooks are truly and clearly haunting the deserted hotel, but the real terror comes from Jack Nicholson’s slow-burn dissent into madness. If you ever get a chance to see this film on the big screen, take it. It is a much different experience than on TV. Trust me. Danny’s big-wheel rides and the pursuit through the maze are stunningly more effective and terrifying on the big screen.

And now the top 5!

5. The Body Snatcher (1945). 

Here is another one that many of you may not have seen. The film was produced by legendary filmmaker Val Lewton, who was hired by RKO in the 1940s to tap into some of the success that Universal studios had with “creature feature” films like Dracula (1931) Frankenstein (1931),  The Mummy (1932), The Bride of Frankenstein (1935), and The Wolf Man  (1941). (All great movies–especially the Bride of Frankenstein— with an appeal all their own, but this list is about spook movies). Working with a very limited budget, Lewton and his team of directors and editors were masters at using lighting, music, camera angles, and sound to scare you with what they did not show rather than what they did. Lewton’s greatest masterpieces are Cat People (1941) and I Walked with a Zombie (1943), but neither of those involve ghosts. The Body Snatcher is directed by Robert Wise, featuring Boris Karloff (who had played both Frankenstein and the Mummy for Universal) as a seedy early 19th century slum-dweller who makes a living producing freshly dead bodies and selling them to a prestigious doctor who uses them for anatomical research. Does Karloff dig them up, or murder them? Either way, the doctor is unconcerned. The plot is rooted in historical fact (and based loosely on a series of Scottish murders in 1828).  In the 1700 and 1800s, this sort of thing did indeed occur in the name of medical progress, and even Benjamin Franklin was probably somewhat involved in this nefarious trade when he lived in London. A ghost does not make an appearance in the film until the very last moments and it is a situation where we have to question whether or not it is supernatural, or if there is a more psychological explanation. This ambiguousness is its brilliance, and either way, the ending provides a powerful punch.

4. The Others (2001).

This is another one that many of you have probably have seen. It is heavily inspired by The Innocents (with the always brilliant Nicole Kidman), building its drama by forcing us to consider whether the events are paranormal or if there is a psychological explanation. It is set just after WWII, but one scene builds the plot and creates a very eerie mood by portraying the mourning photographs that were popular in the late 1800s and early 1900s (In which grieving families took photographs of their beloved dead, often propping them up and posing with them). It has a surprise twist ending, and to me the brilliance of it is that once you know the ending, watching the film again creates an almost completely different movie because you see events from a totally different perspective.

3. The Uninvited (1944).

Not to be confused with the 2009 film with the same title, this film broke the mold for how Hollywood dealt with ghosts. While Universal studio’s “creature feature” movies gave us real monsters in the 1930s, ghosts were almost always explained in the end with a natural explanation–usually involving some bad guy trying to fool people. (à la Scooby Doo).  But during the dark days of World War II when many films started exploring darker themes in almost every genre, The Uninvited played the ghosts straight. This makes it perhaps our first true spook movie. It features a haunted house with two spirits, and a mystery that our protagonists (including the ever-dapper Ray Milland) must solve in order to give rest to the restless dead. This storyline and many of its scenes seem clichéd now, but this is because this film created the clichés. For instance, a séance scene (that is very rooted in the practices of 19th century spiritualists like the Fox Sisters) harkens to almost every ghost movie you have seen that was made after 1944. And like all the other movies on this list, the film’s power derives from character development and eeriness generated from what you do not see rather than what you do. This one was a game-changer.

2. The Changeling (1980)

Again do not confuse this film with a more current one with the same title. This George C Scott film will truly freak you out. If you think The Shining is scary, I dare you to watch this one alone. The film is set in a Gilded Age mansion that carries a dark secret involving a quintessential robber baron magnet who was determined to pass his empire on to a son that could maintain the fortune and make it grow. Mourning the recent loss of his family in a car accident, George C. Scott’s character moves into the mansion during the present day, and while dealing with his own problems, discovers a spirit with much bigger emotional issues than his own. Like The Uninvited, the film also has a séance scene straight from the practices of 19th century spiritualists, and provides subtle moments of terror that will freak you out the more you think about them afterwards. The power of this film is that it will terrify you with simple images, such as a child’s ball rolling down the stairs.

And my #1 spook movie!

1. The Haunting (1963)

Please forget about the 1999 remake. It is crap.

The less I tell you about this film is probably for the better, because everyone deserves to watch this brilliant movie the first time without any preconceived notions. All I will say is this: if you’ve read all of my list so far, you’ve now got a good sense of what I feel creates the best spook movies. Simply put, The Haunting is the finest blend of all these elements, and regardless of genre is a true cinematic masterpiece. Produced and directed by a Val Lewton protégé, the legendary Robert Wise (who also directed The Body Snatcher, but also such classics as West Side Story, and The Sound of Music), the movie is an adaptation of Shirley Jackson’s brilliant novel The Haunting of Hill House. Though toned down, the film still exhibits the 1959 book’s reflection of 50s gender role tensions, Cold War era paranoia and suspicion, and the era’s marginalization of those that don’t conform to societal norms. But none of that gets in the way of a just plain creepy and scary haunted house movie.  Honestly, I am still waiting for it to be topped by a better spook movie, though I suspect it never will. Watch this one and then try not to dream about Hugh Crane as you drift off to sleep.

And remember, no one will hear you cry out for help.

“In the night.

In the dark.”