The new Ruth Bader Ginsburg biopic “On the Basis of Sex” begins grandly, with an all-male chorus singing “Ten Thousand Men of Harvard,” the university’s storied—and flagrantly sexist—fight song. The men sing in that peculiarly reverential tone used for a collegiate alma mater, their creamy tenors caressing every syllable. On the screen, an ocean of besuited young men—and one young woman—flows solemnly toward the Greek Revival temple of learning known as Harvard Law School.
It’s 1956, and Ginsburg is one of only nine women in the class, facing the slings and arrows of sexist men of all ages. The opening scene will be deeply satisfying, especially for viewers who have joined the burgeoning cult of RBG, because they know what those students obviously didn’t: That Ginsburg will end up sitting on the Supreme Court, long after most of the guys who beat her out for law firm jobs have retired to the golf course. More than that, the elderly Ginsburg will become a cultural icon of still-uncharted dimensions.
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“On the Basis of Sex,” a full Hollywood production in which the young Ginsburg is played by Felicity Jones, is the latest entry in the popular movement that presents the pioneering women’s-rights attorney as a kind of progressive superhero. The film is a myth-building exercise for a woman who’s reached mythic stature in a shockingly short period of time.
Like the highly successful “RBG” documentary released earlier this year, “On the Basis of Sex” satisfies a yearning for a liberal heroine in a time of disappointment and cynicism. As a work of cinema, it paints a vivid picture of an era, now passing from memory, when women were completely, rigorously excluded from power. It also offers an intelligent rendering of the struggles to achieve legal equality for women (still ongoing, though you wouldn’t necessarily know it from the story).
As a cultural artifact in the deification of RBG, however, you might say that it—like some of the court decisions it calls into question—sets a dubious precedent.
In the broader sweep of American history, this is an inopportune moment to present a current Supreme Court justice as a political hero. Last month, after President Donald Trump dismissed a ruling against his migrant policy as the action of an “Obama judge,” Chief Justice John Roberts took the unusual step of responding directly, declaring in a statement that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”
Trump shot back on Twitter: “Sorry, Chief Justice Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
By the standard of civic disagreements in the Trump era, this was a high-minded exchange, and a revealing one. No doubt many liberals found themselves essentially agreeing with Trump: Republicans have politicized the judicial nomination process, so everyone must look for chances to elevate “our kind” of judges. There’s an element of regret built into that view: In an ideal world, more like the one of four decades ago, judges would be regarded less in terms of who appointed them than how well they live up to their oaths to provide independent justice, without fear or favor.
There are many reasons that the judicial system has strayed. Presidents making ideologically motivated appointments, rather than seeking consensus, is one. The bare-knuckled brutality of the confirmation process is another. Even if nominees aren’t particularly partisan at the outset, they quickly learn to recognize their friends and enemies; the loyalties forged in the furnace of the confirmation process carry over onto the bench. It’s only human that such anger or gratitude, growing out of a trauma that some compare to a near-death experience, would alter judicial decision-making.
There’s a third element to the politicization of the courts, though. That’s the visceral sense of approval and validation that judges get when they please their fans. The 60,000-member Federalist Society provides conservative judges with a Greek chorus of admirers. And many members of the Supreme Court, such as the late Antonin Scalia, couldn’t resist taking bows before conservative audiences for court rulings that devastated liberals.
Anyone who was discomfited by the notion of ideologically supercharged young conservatives praising Scalia for creating a new individual right to bear arms should probably think twice before donning their RBG T-shirts at the next abortion-rights march—or bursting into applause at her next triumphant cinematic moment. These efforts to show popular support and approval for a heroic liberal judge might feel energizing for progressives, but they also remove any sense of stigma or impropriety from conservatives’ far more effective efforts to provide a support network for “their kind” of justices—a movement so aggressive it handed Trump a list of approved high-court nominees before he was even elected president.
“On the Basis of Sex” isn’t about today’s Supreme Court. It focuses on the earlier chapters in Ginsburg’s career, before she ascended to the bench; it celebrates her breakthroughs as an ACLU litigator of cases challenging sexism in the 1970s. But this strand of admiration, like others in the RBG movement, draws its strength from Ginsburg’s continued presence on the Supreme Court. Without Ginsburg on the court now, in this moment, it’s impossible to imagine there’d be such a traveling circus of Ginsburg-mania.
RBG the current-day gladiator, as much as the figure of history, fills the Ginsburg cart on Amazon this holiday season. Fans can choose from four biographies, five children’s books, a coloring book, a workout book, an action figure, an “historic Ruth Bader Ginsburg notebook,” a throw pillow and a robe-bedecked figurine. The book titles alone attest to an effort to present her as a rebuke to the current state of judging: “The Notorious RBG,” “The Unstoppable Ruth Bader Ginsburg,” “No Truth Without Ruth,” “I Dissent.”
The truth is, until recently, Justice Ginsburg wasn’t particularly noted for her influential dissents, any more than, say, fellow Justices Elena Kagan or Stephen Breyer. But in the larger Ginsburg mythology, she’s a symbol of everything that’s foul and corrupt in Trump-era Washington; her history as a fighter, her constancy, her aged wisdom all combine to make her a kind of priestess for a younger generation.
The Ruth Bader Ginsburg celebration, therefore, isn’t strictly about RBG at all; it’s about DJT. With a president who knowingly sets himself up as an icon of one pole of American politics, it’s about picking (or even inventing) a rival icon to rally around—a way to rebel against a president who openly vows to fill the nation’s courtrooms with like-minded judges, most of them hostile to the concepts of due process and equal protection that liberals hold dear. But in its very presence as an anti-movement, a liberal call to arms to thwart Trump and Mitch McConnell and the Federalist Society, the cult of RBG furthers the politicization of the court. It’s a form of surrender to the “everything’s political” argument that enables Trump to traduce boundaries of propriety that have existed for decades, dismissing the existence of any sort of independence or professionalism in government institutions.
There’s a further irony to the emergence of RBG as a political icon: She would never have succeeded in rooting out some of the double standards in American law had she not argued before some fair-minded, apolitical judges. In “On the Basis of Sex,” the male professors, law-firm partners and Justice Department attorneys are all irredeemably sexist and connive to preserve their privileges; the male federal judges, however, are not and do not. Though they’re lower-court judges, they’re portrayed by character actors resembling Earl Warren and William Brennan and other Republican appointees who turned out to be attuned to social change. When, at an appeals-court hearing, Ginsburg launches into a speech about the evils of sexism, the camera pans over their thoughtfully creased faces, absorbing her words like kindly grandfathers, while oboe music reminiscent of Aaron Copland’s “Fanfare for the Common Man” plays on the soundtrack. The judges are so clearly moved by Ginsburg’s arguments that her team is tearful with joy even before they issue their ruling.
Unfortunately, this demonstration of judicial reasonableness, against all expectations, isn’t emphasized as a story line, even though it’s arguably more inspiring and does more to build confidence in the courts than attributing the victory to one relentless fighter, a woman-against-the-many.
But there’s only one true hero in “On the Basis of Sex,” and it’s the heroine.
* * *
The movie’s determination to be a tale of personal triumph, rather than a drama exploring how the law really changes, are evident early on, and mark it almost immediately as an entry in the RBG canon. In the more nuanced “RBG,” the documentary directed by Betsy West and Julie Cohen, the youthful Ginsburg appears as a quietly intense young woman, awkward and courageous in equal measure. In the rich home-movie footage of the time, there’s something intriguingly different about her. She’s a woman apart.
In the movie, when the plucky, open-faced Felicity Jones arrives on the Harvard campus in her aquamarine skirt and starched blouse she might as well be handing out business cards reading “Indefatigable Heroine.” This Ruth, speaking with a more refined, melodic version of Ginsburg’s famous New Yawk accent, is confident enough to slyly rebuke the dean for a sexist question at the dinner table. There isn’t a moment when she second-guesses her decision to take her chances in such a male-dominated institution, and no recognition of any social costs to her choice.
The documentary “RBG” presents a few intriguing hints of the roots of her difference. Her mother, Celia, died of cancer on the day of Ruth’s high-school graduation; though Celia was encouraging of Ruth’s desire for education, viewers couldn’t help but wonder whether the loss of her mother played any role in her sense of independence. After all, many girls of her era (she was born in 1933) ran up against the expectation that women, even very smart women, must live within certain social boundaries. Often, those boundaries were enforced by their mothers. “On the Basis of Sex,” however, isn’t interested in that or any other questions that would make Ginsburg’s story more relatable to average women. She’s simply exceptional, and no explanation is offered. (She derives inspiration from her late mother in the usual way of movie heroes, gazing at her portrait at challenging moments.)
Nor does the movie provide much of a backstory for its other exceptional figure, Ginsburg’s husband, Marty. The “RBG” documentary makes clear that Marty and Ruth had a uniquely complementary relationship. The extroverted Marty, the kind of person who relishes pulling people together for games of charades, provided a crucial counterpart to the far less outgoing Ruth. Though they were both lawyers, there was no tension between them in their professional lives; Marty was her No. 1 fan and supporter, believing that she was the smartest lawyer he’d ever met. He also enjoyed cooking and parenting. The documentary goes on to explain that, in the ’90s, Marty shrewdly campaigned for her Supreme Court nomination at a time when others felt that, at 60, she was too old for the appointment.
This extraordinary man is one of the most moving parts of the Ginsburg story, in any telling. His presence attests to the role that some far-sighted and loving men played in promoting opportunities for women. “On the Basis of Sex” gives him his full due as a husband, but, like his wife, he seems to arrive on campus as a fully resolved character before the story really gets going. As played by the effortlessly self-assured Armie Hammer (the namesake great-grandson of the late billionaire Armand Hammer), Marty feels no hesitation about donning an apron and performing household tasks while Ruth studies, or, later, having heart-to-heart discussions with the couple’s rebellious daughter, Jane.
The director, Mimi Leder, seems to assume that the audience will understand the motivations of the Ginsburgs simply by presenting them as a couple ahead of their time: Ruth wanted a professional identity for the same reasons today’s women cultivate careers; Marty craved the satisfaction of being a supportive spouse and parent for the same reasons that many of today’s men do. But the Ginsburgs were married in 1954; they chose dramatically different paths than the vast majority of their peers.
The failure to sufficiently explore their motivations seems especially glaring when, early on, Marty is diagnosed with a type of cancer that, at the time, had only a 5 percent chance of survival. The viewer expects that this would be the occasion when Ruth confronts the frightening reality that a widow with a child in the 1950s had few opportunities to make a living, while Marty vows to spend his remaining days showering love on Ruth and their daughter. Instead, the couple seizes on an experimental treatment and confidently vows to beat the disease. Ruth helps Marty keep up with his studies while undergoing treatment; neither of them accepts the possibility of anything but survival.
In this, as in so many other ways, the cinematic Ginsburgs win all their bets; it’s a very affirmative movie. Ruth’s struggles—failing to get a law-firm job, taking a teaching post at a less prestigious university, confronting skepticism about her fitness as an attorney from ACLU boss Mel Wulf—are largely written off to sexism, even in her own mind. In one of the too few moments of surprise and insight during the movie, Ruth takes her teenage daughter to meet the octogenarian lawyer Dorothy Kenyon, who tried but failed to persuade a court to rule against all-male juries. Kathy Bates, as Kenyon, briefs Ruth and Jane on the fight for women’s suffrage but avows that courts aren’t yet prepared to deal with sexism in the law; far better to concentrate on changing hearts and minds than changing the law. After that dispiriting encounter, Ruth watches Jane aggressively tell off some obnoxious construction workers and realizes that, yes, the social changes envisioned by Kenyon were already happening, in the minds of younger women.
The rest, as the movie would have it, is history. Ruth shows her stuff as a lawyer in arguing the case of a man who was denied a tax write-off for a home health aide for his mother, simply because he was unmarried; the tax law offered breaks to men who thoughtfully hired health aides to assist their stay-at-home wives in taking care of elderly relatives, but none to single men who, presumably, weren’t suited for caretaking duties in the first place. The decision to attack sexism through a male plaintiff proves to be an inspiration, and leads to other victories. Then, in the movie’s finale, Felicity Jones ascends the steps of the Supreme Court to argue a case and magically morphs into the present-day Ruth Bader Ginsburg, in a cameo, heading to work.
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That final scene raises the question of what the real Ruth Bader Ginsburg thinks of the RBG movement. Her cooperation with this Hollywood production, as well as the “RBG” documentary, suggests she is, at the very least, committed to having her story told in her own way; she may also be gratified by the attention. There have been a few times in her Supreme Court career when Ginsburg has accepted tributes from liberals; in 2004, she lent her name and her presence to a lectureship at the NOW Legal Defense and Education Fund, in a move that paralleled the more frequent appearances by conservative justices like Scalia, Clarence Thomas and, later, Samuel Alito before conservative legal groups.
She’s been more restrained in recent years. When, during the 2016 campaign, she called Trump a “faker” and expressed her distaste for him, she quickly pulled back, putting out a statement that her remarks were “ill-advised” and asserting that “judges should avoid commenting on a candidate for public office.” In “RBG,” the 85-year-old justice appears embarrassed at the idea of people wearing clothing bearing her image and barely manages a laugh at Kate McKinnon’s “Saturday Night Live” portrayal of her as a kind of robed ninja. She knows how much is too much.
It may be too much to hope that she would use her superhero status to rally her supporters behind Roberts’ efforts to promote judicial independence. It’s one public debate that judges can safely enter without compromising their objectivity, and a cause around which the left and the right can coalesce. More importantly, it does more to counter the threat of Trumpism than simply pushing back against his politics.
Trump’s populist attacks on government institutions hit liberals on two levels. The nakedness of his desire to score victories on everything from Obamacare to abortion rights makes some liberals eager to respond in kind, to match their identity politics against his, their scorched-earth tactics against his. Those who’ve been agitating for a fight may even welcome Trump’s willingness to turn every agency from the Federal Reserve to the Supreme Court to the Justice Department to the CIA into a playing field for partisan politics.
But it’s on the second level—the assault on the integrity of American institutions, the breaking of boundaries that have been honored for decades—that Trump threatens to have his most lasting impact. Liberals, who have spent decades questioning some of those same agencies and trying to scrub them of bias, should understand that Trump’s critique is different from theirs. They’re trying to purify the institutions; he’s trying to discredit them, creating a void he can fill with his own judgments.
The vision and courage of Ruth Bader Ginsburg played a significant role in breaking down legal double standards involving gender, but there were larger forces at work. Her assault on the system succeeded because the system contained mechanisms for change that Americans broadly respected. Those judges with their furrowed brows did their jobs. They weren’t tied down by fixed ideologies, or loyalties to cheering fans on either side. They weren’t following election returns. They merely tried “to do equal right to those appearing before them,” in Roberts’ unartful but satisfyingly apt phrase.
In its determination to celebrate its dauntless heroine over a crusty system, “On the Basis of Sex” cheats the facts: Social progress depends not only on passionate advocates, but also on open-minded judges. The best aren’t necessarily the ones who are most predictable, or most politically galvanizing to their bedazzled followers. They’re the ones who would give a little-known litigator in her late 30s a fair hearing, and were willing to change history because of what she told them.
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