On the Basis of Sex

This mesmerizing little film should be required viewing in all law schools.

on the basis of sexWho would have ever thought that one of the great movies about a successful marriage would center on Supreme Court Justice Ruth Bader Ginsburg? To be quite honest, while this year’s documentary RBG will clearly be nominated for an Oscar, it is hard to understand how this historical little cinematic gem will likely be ignored by Oscar voters.

The movie centers on Ms. Ginsburg’s early fight to have women treated equally with men under our United States Constitution. You see her personally suffer such discrimination when she is only one of 9 female students at Harvard Law School in the 1950s and thereafter found it impossible to land a job in New York despite graduating at the top of her class. Yet her own personal battle only gave her greater motivation to attack gender discrimination wherever it existed.

While the principle focus on this film deals with a federal appeal that Ms. Ginsburg and her husband Marty handled as co-counsel in the 1970s, the love and dedication that these two had for each other will stir you emotionally from beginning to end. This movie is first and foremost one of the great authentic romances you will see on the big screen.

Felicity Jones and Armie Hammer give brilliant, warm-hearted portrayals as a couple equally dedicated to the law and their family. Ms. Jones is a knock-out in and out of court and you lawyers in particular will marvel at her interaction with students when she accepted a law school teaching position at Rutgers when she couldn’t find meaningful employment elsewhere. Ms. Jones is as funny as she is captivating, and you should do yourself a favor and hunt down her role as Stephen Hawking’s tireless companion in The Theory of Everything (2014).

Mr. Hammer continues to show his great acting skills as demonstrated in Call Me By Your Name (2017) and this year’s Sorry to Bother You. Here, despite the fact that he is a successful tax lawyer, he proudly takes a second chair to support the career of his spouse which frequently included cooking at home and taking care of their two children. The love between this couple will frequently leave you wiping tears off your cheeks, particularly when you realize that Marty died in 2010 after they had been married for 59 years.

There are also a number of great supporting roles that should be mentioned. To begin with, Cailee Spaeny gives a wonderful performance as Jane, the Ginsburgs’ teenage daughter. She reflected the anger and turmoil ingulfing our country in the 1960s-1970s and her parents had a full time job keeping her focused on how to fight injustice. This is a talented young actress as reflected by her contribution in this year’s Bad Times at the El Royale.

In addition, Kathy Bates and Sam Waterston give meaningful portrayals of lawyers on the opposite end of the gender divide. Ms. Bates plays Dorothy Kenyon, a lawyer that had to deal with having her heart ripped out after losing an important case while Mr. Waterston plays Erwin Griswold, the arrogant, self-centered sexist who was the dean of the Harvard Law School.

As I watched the Ginsburgs sit next to one another as they conducted oral argument in the Federal Appeals Court, I couldn’t help but be reminded of my experiences with my wife, Ms. Monica Foster. We practiced for years together before she became the Executive Director of the Federal Public Defender’s Office for the Southern District of Indiana, and we were co-counsel in some memorable cases.

Like the Ginsburgs, we sat together during an oral argument before the 7th Circuit in Chicago on a complicated appellate case while also representing an indigent client in a state jury trial. The young man was accused of robbing and shooting a gas station attendant that left him blinded, and our trial followed Monica’s success in getting him a new trial after his conviction and sentencing of 110 years was overturned. Though the trial resulted in a hung jury, we eventually worked out a plea where our client was placed on immediate probation after serving over 5 years in prison.

As I watched the Ginsburgs walk out arm in arm after their oral argument, I thought of the emotional reaction Mo and I had after our client, Gregory Resnover, became the last man to be executed in the Indiana electric chair. We passionately believed that he was wrongly convicted, and a small bottle of Jack Daniels could not wash away our emotional collapse in Michigan City.

Finally, as Marty watched Ruth’s powerful appellate closing argument, I could not help but reflect on the moment when Monica argued in front of the United States Supreme Court that included Justice Ginsburg. Mo’s response to a particular question from Justice Scalia reminded me of the pointed response of Ms. Ginsburg in this film when a judge sarcastically noted that the word “woman” does not appear in the constitution, “Neither does the word freedom, (pause) Your Honor.”

So here’s to two great women who as lawyers have brought honor and dignity to our profession.