Ruth Bader Ginsburg devotees, whose adoration already was enflamed by this year’s fawning “RBG” documentary, are likely to experience similar ecstasy during “On the Basis of Sex,” a glowing dramatization of the Supreme Court justice’s law school days, home life, and early legal career. The movie’s eventual focus, and the source of its misleadingly titillating title, is a landmark lawsuit challenging unequal treatment of persons based on sex. Maybe the studio marketing team didn’t think something less salacious-sounding would hook the “Fifty Shades” crowd.
Ironically, considering the movie’s centerpiece message of equality, British and non-Jewish Felicity Jones (“The Theory of Everything,” “Rogue One: A Star Wars Story”) received pre-release identity-politics grief for being cast as the Brooklyn-born and Jewish Ginsburg. Adding insult to injury for the offended, Israeli-American and Jewish Natalie Portman initially was slated for the role before Jones got it. In an opinion piece titled “The De-Jewification of Ruth Bader Ginsburg,” a writer for Tablet actually lamented the casting of Jones as a “shanda,” and went on to kvetch that “it ought to be someone onscreen who really understands what it is to experience anti-Semitism.”
Because the entire point of acting is the ability to embody different people convincingly, that kind of religious litmus test seems ridiculous. Just because Jones plays Ginsburg as a spunky but petulant Mary Tyler Moore trying to sound like “My Cousin Vinny”-era Marisa Tomei doesn’t mean it would have been impossible for any other shiksa to do a better job.
Even taking into account that Hollywood biopics routinely glamorize their subjects, to say that Ginsburg is flatteringly embodied here would be an understatement. Former Dolce and Gabbana makeup model Jones has a full-lipped beauty that slightly undercuts not only the “Sexism Bad” theme, but the integrity of the entire production. (The same criticism would have applied to Dior model Portman.) Far-right Republicans aren’t the only ones who could regard such cover-girl casting as evidence that agenda-promoting Hollywood liberals can be relied upon to buff the image of their fellow travelers.
The film even goes out of its way more than once to reference Ginsburg’s good looks and sex appeal. A bedroom scene with husband Marty (who also receives an appearance upgrade, in the form of Armie Hammer) enticingly strips Ruth down to a white bra and frilly petticoat. She’s rejected for a job at a law firm after being told the current partners’ wives would get jealous, and she and her daughter are subjected to whistles and catcalls from hardhats. (Sure, those guys might whistle at anyone, but still.) Okay, it’s not as if she does anything like fetchingly swishing her skirt to impersonate Marilyn Monroe in “The Seven Year Itch”—oh, wait, yes she does.
Jones substitutes insistently earnest and almost tearful pleading for what audio from the time reveals was the real Ginsburg’s dispassionate, assured, and forthright tone in court. As the movie’s cutesy Ginsburg gets off to an awkward start on a case, she even clumsily manages to bop a lectern microphone loudly with the back of one hand, to her charmingly mortified chagrin. Jones also has trouble keeping Ginsburg’s Brooklyn accent consistent. (Her “I wanna be a loy-ya” declaration is meme-worthy.)
The screenplay (by Marty Ginsburg’s nephew Daniel Stiepleman, and directed by Mimi Leder) introduces Ginsburg on her first day at Harvard Law School, where she was one of only nine female students in 1956. Dean Erwin Griswold (played with hiss-worthy haughtiness by Sam Waterston) is such a contemptuous chauvinist that he asks each of those nine women at a dinner party to explain why she is occupying a place at Harvard that could have gone to a man.
Married with a young daughter, Ginsburg faces further hurdles when her fellow law student husband is diagnosed with 5-percent-survival-rate testicular cancer. Heroically supporting him by going to his classes to take notes while continuing to attend her own, she rises to become first in her class by her second year. Despite this, evil Dean Griswold refuses to let her continue working toward a Harvard degree at Columbia, when Marty graduates before she does and finds work in New York.
The mildly apologetic male at the 13th law firm to turn Ginsburg down for a job after she graduates from Columbia in 1959 notes with both sympathy and astonishment that she is “a woman, a mother, and a Jew to boot,” all of which were considered insurmountable disadvantages even that recently. In a variation on “those who can’t do, teach,” Ginsburg decides to take a professor position at Rutgers. She is confident she can get the job because a black professor recently left, and as she notes, “they thought a woman would be the next best thing.”
Sadly, this is the only time that quota-style preferences are even tangentially addressed. The movie jumps to 1970, when this “lawyer who’s never actually practiced law” (as Ginsburg describes herself) finally emerges from academia to help argue the first of what would be several groundbreaking gender-equality cases.
The only trial we see play out is one in which she joined with the American Civil Liberties Union to argue on behalf of a man denied a tax deduction because of his sex. The team hoped that a male plaintiff’s plight would engender more empathy than a woman’s from a trio of all-male judges, and that victory would be a stepping stone for striking down all laws that discriminate based on sex.
The movie’s problem from a drama standpoint is that its worshipful portrayal of Ginsburg as a pioneering champion of equal rights for women provides no indication of an intellectual inconsistency that would have shown her as fallibly human. Specifically, we get no indication of Ginsburg’s embrace of race-based affirmative action practices that are utterly inconsistent with equality.
Although the movie concludes well before Ginsburg was in a position to begin voting in favor of things like race-based hiring preferences and college admission racial “plus factors” from the bench, it’s not hard to imagine that the subject of affirmative action must have come up in civil-rights-era discussions with her colleagues, fellow faculty members, or students. What is hard to imagine is that she would not have sounded disingenuous, hypocritical, or foolish trying to justify what amounts to unequal treatment as a remedy for unequal treatment in matters involving race, as opposed to simply removing legal impediments to establish a level playing field.
Even as recently as this year’s “RBG,” Ginsburg repeated an abridged 1837 feminist quote that goes, “I ask no favors for my sex…All I ask of our brethren is that they will take their feet from off our necks.” Why Ginsburg would regard that metaphorical form of relief as appropriate for sex discrimination but insufficient when race is involved is never explained.
Also, every man in the movie besides the understanding, encouraging and does-all-the-cooking Marty is either condescending, dismissive, or dumb. Even ACLU Legal Director Mel Wulf (played with indignant exasperation by Justin Theroux) comes off like a snider Lou Grant to Ginsburg’s persistently determined Mary Richards.
An unexpected, makes-you-think moment occurs when nasty Dean Griswold and his smoke-filled-room cohorts proclaim that overturning sex-discrimination laws would start to unravel the very fabric of our society, and that “what’s at stake is the survival of the family.” It’s chilling to realize that what are supposed to sound like an evil sexist monster’s hysterically dire predictions about a future with lower wages, less job security, and marriage instability actually came true. That doesn’t mean what Ginsburg and company did was wrong, of course, but that even genuinely noble causes may have unfortunate unintended consequences.