The story of the fight for civil rights for women features nothing like the Freedom Riders, the “I have a dream” speech, or Selma. A cinematic treatment of the matter is therefore bound to run into frustrations; there was a revolution here but it mostly took place off-stage. Women shed official second-class status largely through the work of patient, clever lawyers arguing briefs in courtrooms. Some of the most important cases they fought remain almost completely unknown to the general public today. Hands up, all those who can summarize Moritz v. Commissioner. It isn’t even mentioned on the Wikipedia page of the lawyer who won it (with her husband), Ruth Bader Ginsburg. She and the suit, an obscure 1972 tax dispute that had major ramifications, are the focus of On the Basis of Sex, a biopic as sturdy and unshowy as its subject.
“Kiki” Ginsburg, as she was known, is portrayed as a young law student and litigator by England’s Felicity Jones in the film, a companion piece to follow the successful documentary RBG from last summer. The new one is a low-key, low-impact effort, essentially a modestly budgeted TV movie with undisguised pedagogical intent. Written by Ginsburg’s nephew, Daniel Stipelman, On the Basis of Sex is frankly if not cloyingly hagiographic. But as was true of RBG, it undercuts the now-cliché perception of Ginsburg as a fierce warrior — a “feminist gladiator,” as a headline put it just the other day.
Ginsburg faced an uphill road from the start. When she was one of only nine women in her class at Harvard Law School, Dean Erwin Griswold (Sam Waterston) asked her (and the others) how they could justify taking a spot that could have gone to a man. As directed by Mimi Leder, the movie presents this as a shockingly insensitive example of patriarchal hostility, but Griswold later said he was joking.
Ginsburg apparently didn’t see it that way, and the movie captures her quiet determination as she hits the books while raising a daughter and also caring for a sick husband. Marty (Armie Hammer) contracted testicular cancer while a student and was told the survival rate was 5 percent. This is presented as inconvenient to Ruth, who took up attendance in his classes as well as her own. It would seem that things were even more trying for Marty, but the movie ignores that. Okay, this is her story, not his. Still, the script could have spared half a page to explain how Marty beat a 19-out-of-20 chance of death (and lived to be 78).
I make the point because, far from having the kind of fish-and-bicycle relationship that feminists of the era insisted was the actual state of male–female association, the Ginsburgs were a devoted pair, and not just in their personal lives. Marty, a tax attorney, discovered, and co-argued with her, the case that made her name, Moritz v. Commissioner of the IRS. He learned that a man caring for his elderly mother was denied a tax deduction intended for female caregivers (or someone who lost a female caregiver such as a widower). The policy simply assumed that no man would ordinarily care for a sick relative.
Finding a case that harmed a man by discriminating on the basis of sex was an act of legal jiu-jitsu intended to serve a broader point. The Ginsburgs were looking for a way to expunge all of the many sexist laws on the books at the time, and this was to set the precedent that would underlay it all, in the U.S. Court of Appeals for the Tenth Circuit. (I would of course argue that although the law was wrong, it should have been fixed by the IRS or by legislators, not judges.) Ginsburg opened up a whole new department of litigation with the ACLU Women’s Rights Project. “This is not a case,” the legal director of the ACLU (Justin Theroux) tells her. “This is the opening salvo in a 50-year war for a new class of civil rights.” The point is meant to discourage her. It doesn’t.
With Ginsburg’s teen daughter symbolizing the then-burgeoning radical-feminist movement (which quickly became intersectional avant la lettre, getting distracted by issues like poverty and race and war), the movie becomes an intra-feminist dispute: Should we be angry or measured? Demonstrate or litigate? Burn bras or the midnight oil? Is the goal to try to turn the world upside down or focus on narrow, winnable legal questions in which women are obviously being wronged?
There is an implicit question of the worth of divisiveness for its own sake. Some feminists, then and now, wanted maximum antagonism and hence (then and now) expended a lot of furious energy on denouncing the patriarchy. An older lawyer who inspired Ginsburg, Dorothy Kenyon (Kathy Bates), is already exhausted by what she sees as failure: “We started asking, ‘Please,’ as though civil rights were sweets to be handed out by judges.” Replies Ginsburg, “Changing the culture means nothing if the law doesn’t change.” Kenyon grumbles that people like Ginsburg just aren’t tough enough: “Ton of knowledge and no smarts.” You will be unsurprised to learn that a movie by Ruth Bader Ginsburg’s nephew argues that Ruth Bader Ginsburg was in the right. But she actually was right. Her strategy is how the feminist war was won.
And yes, that war was won. A peculiar characteristic of the movement is that it gets angrier as the problems become smaller, or even imaginary. Today the feminists denounce “mansplaining” and whip themselves into hysterics fantasizing about how we’re living in The Handmaid’s Tale. Here’s how Ginsburg put it in a recent MSNBC interview:
Our goal in the ’70s was to end the closed-door era. There were so many things that were off limits to women — policing, firefighting, mining, piloting planes. All those barriers are gone. And the stereotypical view of people of a world divided between home and child-caring women and men as breadwinners, men representing the family outside the home, those stereotypes are gone. So we speak of parent rather than mother, and wage-earner rather than male breadwinner.
Far from being Notorious RBG, Ginsburg is a living example of the wisdom of pursuing incremental change. Her life is about the usefulness of diligence over rage, painstaking attention to detail rather than Year One utopianism. She may be a liberal icon, but the means she deployed are conservative ones.