Ginsburg heroA woman in the 1950s who wished to go to law school, especially Harvard Law School, had to exhibit ample heroism. That was unfair. A male law student could get away with making occasional mistakes. A female law student could not, if she wished to be taken seriously. It's the classic "girls suck at math" cartoon. And that's all before we consider the reality of sexual harassment and threats of violence against women, whichwere at least as much a problem as now. We therefore have good reason to consider Ginsburg's strong achievements in law school, and her subsequent legal career, heroic.
Any effort to document this heroic effort, however, has to walk a line between celebrating Ginsburg's extraordinary talent and effort and making her into a caricature of a hero who cannot possibly exist.
"On the Basis of Sex" does a decent job at walking that line. True, it could have and should have addressed the ethics of some of what she did in law school. For example, the film gives the impression that not only did she take lecture notes for her fellow law student husband, who was sick with cancer, but that she also wrote some of his papers for him. If she really did write his papers, the film should explore the ethical implications more fully. The film could also have done without the treacle of the final scene, where the actual Justice Ginsburg-Hero is shown on the steps of the Lincoln memorial. But the film itself is a tight dram, and we do see some of Ginsburg's personal challenges. She may be a hero, but she is also human, with human faults. She is sometimes overstrict with her daughter, and she seems to sometimes doubt her own abilities.
The documentary "RBG," however, goes almost full-caricature. Other than not knowing how to cook and making the mistake of opining publicly Mr. Trump, the Ginsburg of that documentary can do no wrong. At worst, she can only be done wrong by. Her jurisprudence was right and just. It's only the Men on a Reactionary Supreme Court that stymies her vision. We also hear a little too much about her personal life. We see an 80-something person who still works out, as if to say that even old people can exercise. But what if she couldn't? Would that make her somehow less than a person? And there's that bizarre scene where Ginsburg participates in an opera, which....good for her, but I'm not sure why I had to see that.
Feminism, uninterrogatedBoth films show Ginsburg relating this quotation from Sarah Grimke, a 19th century advocate for women's rights:
I ask no favors for my sex. I surrender not our claim to equality. All I ask of our brethren is, that they will take their feet from off our necks, and permit us to stand uprightThat's a defensible view. It probably represents the principal strand of feminism in the United States. If the sentiment it represents were implemented completely, things would be generally better for everyone.
"Generally" is not "always," however. Securing equality and full citizenship for women can require interventions that go beyond simply getting men's feet off women's necks.Women face specific disadvantages that are hard to remedy simply by liberating them from constraints imposed by men
Sometimes the problem is that men are all too eager to abandon women, as in the case of deadbeat dads. Sometimes the problem is that insurance actuaries do what actuaries are supposed to do and assign higher premiums to women because on average women require more health care. Sometimes the problem is that certain kinds of labor that has been historically and commonly relegated to women, such as raising children, doing household chores, or "pink collar" jobs, is undercompensated or not compensated at all, even though the work itself is vital to the smooth functioning of our society. Sometimes the problem is that women who choose to have children may be sacrificing career opportunities because having children can require at least a couple months away from the workplace.
Fixing those problems requires more affirmative measures than simply getting off women's necks. It requires a number of positive actions, such as deadbeat dad legislation, forbidding insurance companies to take into account certain woman-specific health concerns when pricing premiums, reconstructing how society values certain so-called "woman's work," and recalibrating how certain choices, like medical leave or raising a family, affect career trajectories.
Of course, even in my examples, it's often the actions of men, or the prerogatives of a society in large part controlled by men, that cause the underlying problem. It's also true that in the U.S., the solutions these problems are usually framed in gender neutral terms. Deadbeat dad legislation is probably more accurately called "deadbeat parent legislation" and theoretically could apply to women. "Maternity leave" is usually "family medical leave," and men are free to avail themselves of it as are women. Laws against sex discrimination can be used to protect men as well as women.
My point, though, is that feminism is not always or not only about eradicating the restraints imposed by men. It's also sometimes about changing the rules and reallocating resources.
Again, "On the Basis of Sex" does a better job here than "RBG." The last third of the film is more narrowly focused on one specific case, a law that explicitly benefits women more than men. While the film doesn't really expose us to alternative approaches to feminism, it gives us a rich understanding of how pervasive sexist assumptions were and how they sometimes created unintended consequences.. The last third of the film offers an example of a sexist law that disadvantaged men. That law denied a male caregiver government assistance that otherwise went to similarly situated female caregivers, and reminds viewers that feminism often helps men as well as women.
In "RBG," we see one triumph after another, but little (actually, none, if I recall correctly) about alternative feminist approaches. Women faced restraints. Thanks to Ginsburg and people like her, many of the restraints were removed. But there is still more to be done.
Progress, simplified and out of contextBoth films give the impression that before Ginsburg decided to go to law school, America was in a dark age for women's rights. Fortunately, she did go to law school, eventually became a lawyer, and then made things equal. We don't see much about the developments that preceded Ginsburg's career or that unfolded during her career.
We don't see the movement for the Equal Rights Amendment, which was actually first proposed in 1923. We don't see women's rights activists try to grapple with the contradictions between special protective legislation and "get men off women's necks" legislation. We hear nothing of the 1964 Civil Rights Act, which in addition to banning some forms of racial discrimination, also banned discrimination based on sex. In fact, while it's undoubtedly true that federal and state governments continued to condone or accept some forms of sex-based discrimination after 1964, the examples we see in the two films make it seem as if the 1964 law had never happened.
No teachable moment for jurisprudenceAnother lost opportunity concerns the facile way in which both films, but especially "RBG," deals with how courts interpret the law and what courts are capable of. In both films, we're given to understand what the "right" outcome of specific court cases without understanding the reasoning that gets us there and with only minimal discussion of the potentially dangerous, if unintended, consequences of that reasoning. The upshot is that anyone taking a stand contrary to Ginsburg's is portrayed as only a reactionary and nothing else. But the actual legal conflicts with which Ginsburg grapples were not always as black and white.
Yet again, "On the Basis of Sex" does a better job. Let's return to the case that denied benefits to a male caregiver. As Ginsburg prepares to challenge that law in court, her husband notes the dicey problem of a legal remedy. If the law is unconstitutional, how can the court fix it? Invalidate the law altogether and end the caregiver benefit for women as well as men? Ginsburg's answer is that the legislators who enacted the law didn't intend for differential benefits. The court, therefore, should read that intent into the law and expand the benefits, instead of invalidating the law altogether.
There are some real problems. One problem is intent. It's not necessarily impossible to discern intent behind a law. We can look at Congressional committee hearings and the speeches by senators and representatives, for example. But intent is not always clear. Someone with a "very suspicious of government handouts to the poor" mentality may have been more likely to approve the caregiver benefit as long as it went to the "weaker sex," but would have balked at allowing the benefit to "less deserving" men.That intent may have very well been there, but unstated and difficult to discern.
Another problem is the court revising the law to account for fairness. While I don't recall anyone in the film explicitly arguing that the court should revise laws to be more fair, that argument seemed strongly implied. It certainly seems, to me, fairer to allow the caregiver benefit to all similarly situated persons, regardless of gender. And yet fairness can be tricky. How should unelected judges go to make a law fair? What if the judges' notion of fairness conflicts with our own? Why not, for example, say that men enjoy so many other advantages that it's more than fair to limit the caregiver benefit to women?
The issues of revising laws to better reflect legislative intent and a notion of fairness appear in "RBG," too, in its discussion of Ledbetter v. Goodyear Tire and Rubber Co. That case addressed a situation that I find very unfair. An employer had, apparently, engaged in gender based discrimination for several years against the plaintiff, Lilly Ledbetter. But it was unclear about whether the law against such discrimination, as written, actually was enforceable in that case. "RBG" seems to suggest that the only correct outcome was always going to be the one Ginsburg favored and that the only reason Ginsburg's position lost out was because the Court's reactionary wing won the day. But my (layperson's) reading of the Wikipedia article I linked to (and my recollection of the news reports at the time the case was decided) is that the case was much more complicated than "bad corporation" and "reactionary judges." The film, however, goes into none of those nuances.
Neglecting those nuances turns both films (and especially "RBG") into morality plays. And if my liberal and left of center friends see nothing wrong with that, how might they feel about a similarly construed biopic of, say, late Justice John Roberts. Take, for instance, Roberts's dissent in Obergefell v. Hodges (2015), which legalized same sex marriage. Such a film made in the spirit of "RBG" would portray his stance as one of defending the constitution and the rule of law against substituting facile moral convictions for legal principles--and such a film would also, more damningly, fail to consider the pro-same sex marriage side.
Send offI enjoyed "On the Basis of Sex" and didn't enjoy "RBG." But whether you enjoy both or either, I urge you to consider how much valuable they could be if we had seen more discussion of the more complicated approaches to the problems Ginsburg addressed. I realize ours is an era where sides are polarizing, and for many, this polarization requires getting the base mobilized and not winning over those who are so far undecided. Maybe there's a market for that and maybe mobilizing those who already agree will work. But the costs to these films' approach are threefold:
- It will fail to win people who may be convinced to change their minds.
- It will also make the "liberal" argument into an easily refutable caricature that opponents will also use to mobilize their own base.
- It suggests a refusal to engage the truth, in all its inconvenient complexities. We have seen, and continue to see, the consequences of this refusal in daily Twitter feeds coming from the White House.