Law in Popular Culture

'On the Basis of Sex' and remembering Justice Ginsburg

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RBG

U.S. Supreme Court Justice Ruth Bader Ginsburg. Photo from Shutterstock.com.

R.I.P., RBG. Here we are again, almost four years from the last time a U.S. Supreme Court Justice died in office. Justice Antonin Scalia passed away in February of 2016, and President Barack Obama nominated Merrick Garland for the vacant position. We all know how that turned out.

Regardless of your political slant or any partisan bias you may hold, we’re seeing a similar situation transpire with the recent passing of Justice Ruth Bader Ginsburg. But despite the same fact pattern, it appears the end result may be different this time around. Without getting on a political soapbox, I’ll just leave it at that.

Still, Justice Ginsburg’s passing has brought even more spotlight on the life and career of a beloved advocate and jurist. As I was skimming through news articles related to her life and death, I noticed that two films based on her life, the 2018 drama On the Basis of Sex and the 2018 documentary RBG were being re-released to theaters by Focus Features and Magnolia Pictures, respectively, to celebrate her life and career.

‘On the Basis of Sex’

Now, I never saw On the Basis of Sex in the theater. I was already well aware of Justice Ginsburg’s backstory and her fight for women’s rights and equality of the sexes. However, if I had known that my wife was not as familiar with the late Justice’s genesis, I’d like to think we could have made a date night out of dinner and the film. In the current climate, though, we’re both admittedly still too anxious to go out to the movie theater.

Luckily, we were able to find the film streaming on the Showtime app and have a nice quiet Saturday night alone at home after our son went to sleep. Don’t get me wrong: On the Basis of Sex is definitely a movie that could easily fall into the “family” genre, but there are no astronauts or dinosaurs, so my 2-year-old wouldn’t be too terribly interested.

The film stars Felicity Jones as the late justice. It begins in 1956 with Ginsburg starting her first year as a student at Harvard Law School. Her husband is a second-year student at the same school, so one would think that her entre into the Harvard environment and culture would be something akin to smooth sailing; however, that is far from the truth.

On the Basis of Sex quickly indoctrinates its audience to the difficulties and discrimination faced by women attempting to enter the legal profession in the 1950s. Harvard Law School had only recently begun accepting female students, and it’s clear from Ginsburg’s interactions with the dean and some of her professors that, regardless of her status as a full-time enrolled student, she is still considered a second-class citizen of sorts when compared to her male counterparts.

The film does a fair job of capturing the law school experience—at least the classroom aspect of it—by demonstrating the Socratic method and Ginsburg’s natural propensity to succeed within the teaching method’s confines. There were a few times where my wife asked me, “Is that really how law school is?” to which I had to admit that the film wasn’t really far off from my own personal experiences.

After various trials and tribulations, Ginsburg transfers to Columbia Law School, where she receives her law degree and begins looking for a job as an associate attorney. Despite graduating at the top of her class, every firm she interviews with refuses to offer her a position based on the fact that she is a woman. After a montage of failed attempts at employment, Ginsburg takes a job as a professor at Rutgers Law School, teaching a class titled Sex Discrimination and the Law.

Though Ginsburg seems to enjoy teaching her students, she makes her husband aware that she wants more. Her husband, now an up-and-coming tax attorney, brings a new potential case to her attention. It deals with a man, Charles Mortiz, who has been discriminated against by the U.S. tax code. The United States Tax Court had ruled that under the code, he was not allowed to qualify for a caregiver deduction, even though he cared for his ailing mother and had to hire a nurse to assist him so he could continue to work. The tax court held that the language of the specific provision in question was limited to “a woman, a widower or divorcee, or a husband whose wife is incapacitated or institutionalized.” Mortiz had never been married, so the court ruled he could not deduct the nursing care expenses.

Ginsburg and her husband take the appeal to the 10th U.S. Circuit Court of Appeals, where they are ultimately successful. I thought the film did a great job of portraying the brief writing experience and how that process can be a collaborative group effort. I found the scenes showing the oral argument preparation to be reasonably true to form as well.

Overall, On the Basis of Sex serves as an excellent and accessible pop culture introduction for the uninformed regarding Justice Ginsburg’s background and contributions to the plight of women’s rights. Although the film can come across as a little hokey at times, the overall tone is serious enough to instill the gravity of Justice Ginsburg’s fight and the numerous obstacles she had to overcome.

RBG, the pop culture phenom

Despite her small physical stature, no one can argue with a straight face that Justice Ginsburg was anything less than a legal giant. As a Supreme Court justice, she used her past experience litigating issues of gender discrimination to aid a male-dominated court with answers to questions they may have never contemplated. One of her most notable opinions United States v. Virginia (1996) greatly impacted the antiquated questions of whether gender equality is a constitutional right.

Justice Ginsburg wasn’t known merely for landmark opinions, though. Some of her most significant stands and longest-lasting legal ideals are contained in her dissents. For those interested, look into cases such as Ledbetter v. Goodyear Tire & Rubber Company (2007) and Shelby County v. Holder (2013), just to name a few.

Furthermore, since this is a column on pop culture and the law, I’d be remiss if I failed to mention other iterations of Justice Ginsburg in the media. Although I never viewed the documentary myself, I’ve seen nothing but rave reviews for RBG—the documentary I mentioned earlier. The documentary offered previously unseen access to a Supreme Court justice. From the limited sample size I have reviewed, RBG takes the somewhat romanticized account of On the Basis of Sex and grounds the story in reality.

Moreover, any current fan of Saturday Night Live is well acquainted with Kate McKinnon’s recurring role as the “Notorious RBG”—a role that even carried over to the Saturday Night Live at Home installments. Whether discussing her potential retirement, marriage equality or other justice’s nominations, McKinnon brought a fiery enthusiasm to RGB’s approach and delivery.

Even as SNL gears up for its 46th season, there is still a chance that McKinnon’s portrayal isn’t gone for good, and with good reason. Justice Ginsburg’s legacy will live on. And the hope is that our future high court can help build on the progress she contributed to during her life fighting for, advocating against and deciding important issues of gender discrimination and inequality.

See also:

ABA Journal: “Justice Ruth Bader Ginsburg has become an unlikely pop culture icon”


Adam R. Banner is the founder and lead attorney at the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white collar crimes.

The study of law isn’t for everyone, yet its practice and procedure seems to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.

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