A Watered Down Ruth Bader Ginsburg
Americans may not know much about their Supreme Court, but they do know about their “Notorious RBG.” Ruth Bader Ginsburg, America’s best-known justice, has recently become a cultural figurehead among a certain set (and, among conservatives longing to replace her with Judge Amy Coney Barrett, an icon of left-wing judicial ideology). But regardless of what one thinks of her politics, it’s hard to deny her flair for memorable dissents and her inimitable sense of style.
These are clearly banner times for Ginsburg admirers. On the Basis of Sex, the new RBG biopic starring Felicity Jones, follows closely on the heels of the documentary RBG. But arriving as it does in a politically fraught moment, Basis is a surprisingly uncontroversial film—one much more interested in the warm conventions of mainstream Hollywood storytelling than in hard questions of justice.
We meet the young Ginsburg on her first day at Harvard Law School, where her husband Marty (Armie Hammer) is a second-year student. After graduating at the top of her class—and fending off plenty of derogatory comments along the way—she attempts to join a firm in New York. But as it turns out, that market is an old boys’ club par excellence: there’s no room for a female lawyer as talented as Ginsburg. Instead, she accepts a teaching position at Rutgers Law School, where she soon comes to realize that the U.S. Code is riddled with gender stereotypes.
With some assistance from the ACLU, Ginsburg launches her first attack on the status quo: Moritz v. Commissioner. It’s a fascinating case involving sex discrimination…against a man. Ginsburg’s client, serving as a full-time caregiver for his elderly mother, has been denied the tax break associated with nursing. The reason? Policymakers couldn’t conceive that any male would choose such a life. And so the battle lines are drawn.
In any “social change” drama like Basis, the temptation towards smug historical triumphalism is always close at hand. But intriguingly, the film is nearly as critical of radical progressivism as it is of “conservative” gender conventions. Midway through the movie, Ginsburg chides her daughter Jane for idolizing To Kill a Mockingbird’s Atticus Finch—after all, Atticus does stretch the boundaries of the Model Rules of Professional Responsibility. Jane lashes out in response, demanding to know why doingwhat’s right must take a back seat to the procedural strictures of the legal process. In the face of that indictment, Ginsburg’s defense of the process feels thin, both to herself and her daughter. (It’s worth mentioning that, perhaps to the chagrin of modern viewers, Robert Bork—that gray-bearded patriarch of the conservative legal movement—would surely agree with Ginsburg: “the political seduction of the law” is a force that must be eternally resisted.) But thin or not, it’s a principle that keeps her going.
Basis is a paean to a kind of liberal institutionalism, one that has fallen out of fashion in recent years. Instead of ferocious demonstrations or other forms of direct action, here we see change unfolding within the quiet decorum of courtrooms and offices. And limited though the appeal of norms and procedures may be, Ginsburg perseveres—to a point.
When the moment of truth arrives, RBG delivers a stirring soliloquy before the Tenth Circuit, unabashedly arguing that courts’ interpretations of the law ought to track the evolution of social attitudes. Surely, she challenges the all-male panel of judges, the rapid progress of women’s rights in the last century must inform how one understands the Constitution’s guarantee of equal protection. The Constitution may not speak of women’s rights—or even of “freedom” itself—but those elements must be in there nonetheless. (On that methodological framing, one might wonder whether the penumbras and emanations of Roe v. Wade can be far behind, but perhaps that’s beside the point.)
And so, for a film that stresses the importance of process, the most significant aspect of the democratic process feels neglected: if the populace is willing, why not simply change the offensive laws themselves? After all, what could be more disrespectful of process than overriding existing laws via judicial fiat?
Alas, no answer is forthcoming: Basis, from top to bottom, embraces a remarkably sanguine view of judicial power. The film’s judges—including, to be sure, Ginsburg herself—are cast as philosopher-kings of a sort, the vanguards of lasting social change. History suggests, though, that caution is warranted: it was, after all, the legal lion Oliver Wendell Holmes who penned the infamous eugenicist declaration that “three generations of imbeciles is enough.” The far-left Critical Legal Studies movement may be only a shadow of its former self, but it at least understood this risk: unshackled judges, time and again, will wield their authority against the common good. And that is a very inconvenient truth.
It’s worth noting that there’s a surer, less fraught path to Ginsburg’s ideal destination. Federalist Society co-founder Steven Calabresi has argued at length that the Constitution’s equal protection guarantee “was from its inception a ban on all systems of caste,” such that under a proper reading of the text, sex discrimination was unlawful from the start. That argument is very different from the one we hear onscreen: it isn’t rooted in evolving social norms, but in text and constitutional history. Though admittedly, “text and constitutional history” aren’t exactly the stuff of gripping cinema.
As a film, Basis generally succeeds. It’s entertaining, well acted, and strikes all the right inspirational notes—even if its theory of jurisprudence doesn’t mesh well with its celebration of the legal process. In many ways, the movie feels tailor-made to capture the widest possible audience.
And that means it’s hard to know what to take away from Basis. Perhaps its inoffensiveness reflects a fundamental failure to capture the dynamism of its real-world subject. Perhaps, in a season of American rage, it’s an appeal to national unity that almost everyone can embrace. Or perhaps, unintentionally, it’s a partial explanation of how things ended up so polarized in the first place.
John Ehrett is executive editor of Conciliar Post and a graduate of Yale Law School.