Mimi Leder’s On the Basis of Sex features Felicity Jones playing Ruth Bader Ginsburg ’54. The film focuses on the Supreme Court Justice’s early life during, and not long after, her law school years. It culminates in a dramatic rendering of Ginsburg’s breakthrough litigation in the case Charles E. Moritz v. Commissioner of Internal Revenue.
I enjoyed some things about the film. The scenes depicting Ginsburg in class — both as a student at Harvard and as a professor at Rutgers — honestly capture the cold indifference with which the Socratic method is employed at law school . . . or so I hear from the classroom horror stories my mother tells me about her time at law school. In a subtle nod to its great predecessor The Paper Chase, the law school drama to end all law school dramas, On the Basis of Sex touches on Hawkins v. McGee, otherwise known as the “Hairy Hand” case. However, the latter film employs much less pomposity and embarrassment rendered upon the student. Felicity Jones accurately illustrates the cynical resignation that Ginsburg the professor must have exhibited after no corporate law firm would hire her on the basis of her sex, and her religion and her maternal status, a calm that perhaps arises when one is brilliant yet ignored. One of my favorite deliveries in the film is the following by Jones at the commencement of a class at Rutgers law school: “I’m Professor Ginsburg. This is sex discrimination and the law. Some of my colleagues will tell you that sex discrimination doesn’t exist, that I may as well be teaching the legal rights of gnomes and fairies. Let’s see if they’re right.”
Despite the pre-law eagerness with which I viewed On the Basis of Sex, I argue that the film and other social-justice-oriented historical works — namely, those set during the twentieth century – reinforce a limited understanding of social progress, an inadequate perception of change that is embraced by current, mainstream discourses. The problematic moment of the film that informs my argument occurs towards the end, during the litigation of Moritz v. Commissioner. The case concerns a man, Charles Moritz, who was not granted a tax deduction for hiring someone to take care of his ailing mother, as such exemptions were granted only to women; the question at hand was whether the law violates the Equal Protection Clause of the Fourteenth Amendment. After a few biopic clichés during which Ginsburg, then a novice litigator, falters under questioning by the panel of judges (that a tenured law professor would find herself at a loss of words, even in the courtroom, is difficult to believe), she sways the argument back to her side by claiming, boldly, that “radical social change” has occurred. Thus, she posits, it is the law that ought to catch up to society’s altered values and, in the case at hand, recognize that women are no longer merely caretakers and homemakers, but also professionals at the workplace and in legal spheres (and, of course, to also recognize that men might be primary caretakers as well).
I find the use of the phrase “radical social change” troubling. The change to which Ginsburg refers to concerns the aforementioned exodus of women from the home to professional settings. I am not doubting that this was radical, and I do not mean to deny the adversity faced by women like Ginsburg. However, On the Basis of Sex is a piece of art crafted in 2018, and as such, we must receive it as critical thinkers of 2018, not those of 1970. As far as I’m concerned, the United States has yet to endure a truly radical, social change, because the brokers of power remain the same. Neoliberal capitalism and the institutions that uphold it are as powerful as ever before and human worth continues to be judged by viability in the economic marketplace. The invitation of a few women to the spaces of neoliberalism does not create radical change, it merely reinforces the power structures that exploit people and perpetuate social hierarchy in the first place.
When radical, social change does occur in the United States, it will not be grounded in the narrow purview of an antiquated, second-wave (and too-white) feminism; it will necessarily be rooted in alternative philosophies, those left beside mainstream culture and who idealize neither the false profundity of mainstream professionalism nor the governmental agencies — such as the Supreme Court of the United States — that affirm its existence. Films like On the Basis of Sex tell stories of social justice past, but it’s important to remember that this is all that they can do. Taking them for being more profound, for actually embodying justice, often risks promoting — to quote Sylvia Wynter — a “cheap and easy radicalism” that does little to challenge the restrictive logics of mainstream thought.
Nick Swan is a senior in The College of Arts and Sciences. He can be reached at firstname.lastname@example.org. Swan’s Song runs alternate Thursdays this semester.