"On the basis of sex".
It means a lot of different things to a lot of different people. And, over the centuries, it has changed considerably. But one thing we can all agree on is that on the basis of sex only women are able to become pregnant. And not every pregnancy is wanted. And soon the consequences of that may well be adjudicated in the highest court in the land. That land being America and that case revolving around abortion.
And Ruth Bader Ginsburg may or may not be on the court when the tide either does turn dramatically on abortion or does not. After all, she is now 86 years old, and recently underwent a "left-lung lobectomy". In fact, to this day many liberals bemoan her decision to stay on the court rather than retire and allow Obama and a Democratic Senate to replace her with a younger model.
Only time will tell how ironic that is.
Meanwhile there is still her story to tell. And of late that part seems to be everywhere. RBG lived a particular life, accumulated particular experiences, embodied particular political prejudices. Not unlike all the rest of us. Only very, very few of us make it to the United States Supreme Court.
And then this part: "Inspired by a true story". Right from the start we know that some of what we see is going to be "embellished". Amped up to make the plot more enticing.
On the other hand, we all have our own version of the truth, don't we?
Missing [of course]: The part where "the law of the land" [all the way up to the Supreme Court] is embedded in the historical evolution of political economy. You'll either grasp this or you won't.
Still, they do broach the historical relationship between culture and the law. Do you change the laws first in order to change the culture? Or, instead, do you first change the culture in order to change the laws? Like, for example, taking your value judgments to the streets and, in protesting, forming a "political movement".
Look for
The Paper Chase.
And, of course, conflicting goods.
IMDbThe first case covered in Ginsburg's contracts class at Harvard Law School was Hawkins v. McGee (1943). This was also the first case covered in the contracts class in The Paper Chase (1973), also set at Harvard Law School.
Daniel Stiepleman - the writer of the film - is Ruth Bader Ginsburg's nephew.at wiki:
https://en.wikipedia.org/wiki/On_the_Basis_of_Sextrailer:
https://youtu.be/28dHbIR_NB4On the Basis Of Sex [2019]
Directed by Mimi Leder
Griswold: My name is Erwin Griswold. I am the dean of this place. Welcome to Harvard Law School. Take a moment to look around you. In this room, there are Rhodes and Fulbright Scholars, Phi Beta Kappa members, student body presidents, and a Harvard football team captain. Together you will become lawyers. This is a privilege you share. It is also a responsibility you accept. Consider... what does it mean to be a Harvard man? A Harvard man is intelligent, of course, but he is also tenacious. He is a leader devoted to the rule of law. He is mindful of his country, loyal to tradition, and he is respectful and protective of our institutions.He says this to a sea of men. And [according to the camera] to three women. Though it turns out to be nine.
Ruth [holding up two dresses]: Which one makes me look more like a Harvard man?
Marty [her husband]: I'm thrilled to report that you look nothing like a Harvard man.
Ruth: Seriously. It's the dean's dinner, Marty. You know how I am at these things. I-I need to make a good impression.
Marty: And you will, Kiki, but you've got it wrong. It's not the dress. It's you.
...
Griswold: Esteemed colleagues, ladies. This is only the sixth year women have had the privilege to earn a Harvard law degree. This little soiree is our way of saying welcome....Let us go around the table, and each of you ladies report who you are, where you're from, and why you're occupying a place at Harvard that could have gone to a man.
...
Ruth: Uh, I'm... Ruth Ginsburg from Brooklyn.
Griswold: And why are you here, Miss Ginsburg?
Ruth [mockingly]: Uh, M-Mrs. Ginsburg, actually. My husband Marty is in the second-year class. I'm at Harvard to learn more about his work, so I can be a more patient and understanding wife.
...
Ruth: We came to Harvard to be lawyers. Why else?
Marty: It's truly an asinine question.
Ruth: He's never gonna take me seriously.
Marty: No, that's not true. You're the smartest person here, and you're gonna be the most prepared. So just stand up and say what you know. At a place like this, that's all that matters.
Ruth: In my experience, even small mistakes are glaring when you stick out.
Marty: Well, then you're very lucky. Because you... are very... short.
...
Professor Freund: Judges are bound by precedence, but they cannot ignore cultural change. A court ought not be affected by the weather of the day, but will be by the climate of the era.
...
Mr. Greene: Jesus, Mary and Joseph. Graduating top of your class. Law Review at Harvard... and Columbia. I didn't even know that was possible.
Ruth: Thank you, Mr. Greene. I've worked hard.
Greene: Well, you want some white-shoe firm. Big money cases, complex legal maneuvers...
Ruth: No, I think Bibler and Greene is the perfect fit. You handled the Mercer bankruptcy last year.
Greene: Come on. How many have you been to? They all turned you down, right? How many? Maybe ten?
Ruth: Twelve.
Greene: A woman, a mother, and a Jew to boot. I'm surprised that many let you through the door.
Ruth: One sent me to interview for the secretarial pool. Another told me I'd be too busy at bake sales to be effective. One partner closes his clients in the locker room at his club, so he said I'd be out of the loop. Last week, I was told women are too emotional to be lawyers. Then that same afternoon, that a... a woman graduating top of her class must be a real ballbuster and wouldn't make a good colleague. I was asked when I'd have my next baby. And whether I keep Shabbat. One interviewer told me I had a sterling resume, but they hired a woman last year, and what in the world would they want with two of us?Greene then provides her with another excuse for not hiring women: jealous wives.
Marty: Did you get the job? You got the job. That's wonderful. Oh! So they're gonna give you a corner office, or are you still gonna have to jump through some hoops?
Ruth: It's not at Bibler and Greene. I wasn't what they were looking for.
Marty: That's okay. I told you one of those other firms would come back. Which one was it?
Ruth: Clyde Ferguson left his professorship at Rutgers. They haven't found another black man to replace him, so someone thought a woman would be the next best thing.
Marty: You can't quit. There are more firms out there. This is the biggest city in the most litigious country in the history of the planet. You can still...
Ruth: Marty, I got a job. Just open the champagne. Let's celebrate.
...
Marty: You know what I think? I think this is good. I think it's better. You won't be beholden to any firm, you won't have a partner breathing down your neck, and also, a professor is free to represent any client she chooses.
Ruth: As long as they don't mind a lawyer who's never actually practiced law.
...
Ruth [to her class]: I am 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.
...
Ruth [to the class]: Ten years ago, Dorothy Kenyon asked a question: If the law differentiates on the basis of sex, then how will women and men ever become equals? And the Supreme Court answered: They won't. Hoyt lost her appeal. The decision was unanimous. Discrimination on the basis of sex is legal.
...
Ruth: I want to know where you were.
Jane [her daughter]: Denise and I went to a rally to hear Gloria Steinem speak...She just started her own magazine. She testified in the Senate about...
Ruth: Yeah, I know who Gloria Steinem is. What if you got hurt or arrested?
Jane: Mom, it's a rally, not a riot.
Ruth: Jane, these things can get out of hand.
Jane: Okay, well, I'm 15 years old, and you don't need to control every minute of my life.
Ruth: Yes, I do. That is my job. And your job is to go to school and learn.
Jane: Well, Gloria says we need to unlearn the status quo.
Ruth: Oh, so you're on a first-name basis now?
Jane: You know what, Mom? If you want to sit around with your students and talk about how shitty it is to be a girl, okay, but don't pretend it's a movement. It's not a movement if everyone's just sitting. That's a support group.
...
Marty: Just tell me what you want.
Ruth: Nothing. I want nothing. I-I want you to go to work and wow your bosses and clients and be the youngest partner in the history of the firm.
Marty: That's not fair. That's not fair, and you know it.
Ruth: Then I want you to walk me home, Marty, so I can sit in my corner and write a lesson plan to inspire the next generation of students to go forth and fight for equality.
Marty: I don't understand why you're acting like that's such a bad thing. You're out there training the next generation of lawyers to change the world.
Ruth: 'Cause that's what I wanted to do!!!
...
Ruth: Marty... Section 214 of the tax code assumes a caregiver has to be a woman. This is sex-based discrimination against a man.
Marty: Poor guy.
Ruth: If a federal court ruled that this law is unconstitutional, then it could become the precedent others refer to and build on. Men and women both. It-it... It could topple the whole damn system of discrimination...Oh, Marty. We need to take this case.
...
Ruth: Mel, you must see the...the opportunity this case represents.
Mel: You think the judges are gonna be sympathetic just 'cause they all have prostates? Men and women all eat at the same lunch counters, they drink at the same water fountains, they go to the same schools...
Ruth: Women can't attend Dartmouth.
Mel: Men can't go to Smith.
Ruth: Women police officers can't patrol New York City streets. We have to get...We have to get credit cards in our husbands' names.
Mel: You're not a minority. You're 51% of the population! And it's been tried. Muller, Goesaert, Gwendolyn Hoyt.
Ruth: Yeah, and morally, they were right.
Mel: Yet they lost. Ruth... morality does not win the day. Look around you. Dorothy Kenyon could not get women equality by arguing a case with sex, murder and prison time on the line. You and Marty think you're gonna do it with this guy and his taxes?
...
Charles: So, if it's not for the money...why are you here?
Ruth: The 14th Amendment to the United States Constitution says all people must be treated equally under the law. Yet there are...I don't know how many laws like the caregiver deduction that say, in effect, women stay home, men go to work, and that it should stay that way forever. I want to convince the federal courts that those laws are unconstitutional.
Charles: How do you do that?
Ruth: One case at a time. Starting with yours.
Charles: So I'm a guinea pig?
Ruth: No, sir. You're the man marching out ahead of the band, leading the way. Just like that drum major you used to be.
...
Marty: So, how was your day?
[Ruth hands him an index card]
Marty: "History discloses that woman has always been dependent upon man. Like children, she needs special care. This justifies a difference in legislation..."
Ruth: Muller v. Oregon, the law of the land. Or Bradwell v. Illinois. "The destiny of woman is the benign offices of wife and mother. This is the law of the Creator." I'm writing this brief and citing the same cases with the exact same precedents as everyone before us. Marty, if this is what we go in with, we're gonna lose.
...
Dorothy: You ladies look lost. Well, spit it out.
Ruth: Miss Kenyon, w-we're here to see you. I tried to make an appointment...
Dorothy: Well, here I am. I don't have all day.
Ruth: It's about Gwendolyn Hoyt.
Dorothy: In that case, I have no interest in talking to either one of you.
Ruth: I'm-I'm arguing a case. Sex discrimination violates the Equal Protection principle.
Doprothy: Equal Protection was coined to grant equality to the Negro, a task at which it has dismally failed. What makes you think women would fare any better?
Ruth: Please, if we could just talk for...
Dorothy: You want to know how I blew it... is that it? What I'd do differently? Why? You think you can change the country?
[she turns toward Jane]
Dorothy: You should look to her generation. They're taking to the streets, demanding change, like we did when we fought for the vote. Our mistake was thinking we'd won. We started asking, "please," as if civil rights were sweets to be handed out by judges.
Ruth: Protests are important, but changing the culture means nothing if the law doesn't change. As a lawyer, you must believe that.
Dorothy: Let me guess. You're a professor, aren't you? A ton of knowledge and no smarts.
...
Dorothy: Tell your client she won't find equality in a courtroom.
Ruth: My client's name is Charles Moritz.
Dorothy: That's cute.
Ruth: He hired a nurse to take care of his mother, but...he was denied a caregiver deduction on his taxes.
Dorothy: He's never been married. You found a bachelor taking care of his mother at home. The judges will be repulsed by him.
Ruth: Feeling anything is a start.
Dorothy: What did you say your name was?
Ruth: Ruth Bader Ginsburg.
Dorothy: Well...sorry, Professor Ginsburg. Maybe someday. But the country isn't ready. Change minds first, then change the law.
...
Millicent: May I make an observation, Professor Ginsgurg? It's just...when I was typing it up, jumping out all over the brief was... well... sex. Sex, sex, sex, sex, sex, sex, sex. It reeks of hormones and back seats, and... you know how men are. Maybe you should try a less distracting word. Maybe... "gender."
...
Dorothy: In 1776, Abigail Adams wrote her husband a letter. "As you write this new constitution," she said, "remember the ladies." You know what that bastard went ahead and did?
Mel: Well, I can guess.
...
Mel: All right. The ACLU is prepared to put their name on your brief...I still say I'd rather be a woman in this country than a black man or a... socialist or a religious minority.
Ruth: Now, let's talk about you taking on Reed v. Reed.
Mel: Oh...Stop.
Ruth: All men in Idaho are better at math?
Mel: Ruth, I gave you one case. That's all you get.
Ruth: The Moritz argument works just as well for a female client. And Reed's a state supreme court case, which means the U.S. Supreme Court must hear the appeal.
Mel: I-I told you, I don't want another 50-year battle.
...
Griswold: Ten years I fought to enroll women at Harvard Law. The faculty, the university, my wife warned me against it. Now I'm solicitor general, it comes back to haunt me.
Ernest: Erwin, we could settle. Martin Ginsburg was one of my best students, a practical young man... we can call him, tell him we'll give the man his money and go our separate ways.
Griswold: No. No. We settle now, it's open season. Let's put this idea of gender discrimination to bed once and for all. They handed us a winnable case.
Ernest: Then we'll win it.
Griswold: You think he's up to it?
Ernest: Oh, Mr. Bozarth is a fine litigator. Tell him your idea.
Jim: We list the laws.
Griswold: What laws?
Jim: All of them. Every federal law that treats men and women differently. We show the court exactly what kind of can of worms these folks are trying to open.
...
Griswold: We don't want so-called gender discrimination finding its way to the Supreme Court.
Jim: Yes, sir, I understand that.
Woman: What-what makes this judge so difficult?
Jim: Well, ma'am, he's a civil rights crusader. Two years ago, he ordered Denver to start busing black students to white schools. There were protests, arson, demands for him to quit the bench. But even after someone threw a bomb at his house, Doyle wouldn't budge.
Griswold: In that case, he was enforcing the law. The Ginsburgs are asking him to make law. We need to drive home the difference. Paint the judges a picture of the America that will exist if they rule the wrong way. Children running home from school to find no one's there.
Ernest: Mommy's at the office or on a factory floor.
Griswold: Man and woman vie for the same job, she can work for less. What is a man without a paycheck to take care of his family?
Ernest: What woman would want him?
Jim: Wages would go down. Divorce rates would soar. The very fabric of our society would begin to unravel.
Griswold: Exactly. The other side wants this to be about the Equal Protection principle. The judges are deciding what kind of country, what kind of society they want their children and grandchildren to grow up in. You make sure the court sees what's at stake is the American family.
...
Marty: There is no aspect of the law at which Ruth Ginsburg can be bested. I don't know how things work at the ACLU, but if anyone at my firm couldn't see that, they would be fired.
Mel: Objection noted, counselor. She's still arguing half.
Marty: This is her...
Marty: Listen, she's written a revolutionary argument, but brief writing is an academic's job. Okay? Oral arguments require a lawyer who can command a judge's respect. A real appellate lawyer.
...
Mel: Allen is gonna be arguing in the Supreme Court that times have changed. We can't afford the Tenth Circuit saying that they haven't.
Ruth: Nothing would strengthen the argument more than the appeals court deciding for Charlie.
Mel: Yes, that would be very nice, but here in the real world, with working lawyers...
Ruth: You think I can't be persuasive?
Mel: Oh, I've never been more certain about anything in my life, Ruth. You don't get to tell me when to quit. You couldn't even make it through moot court without embarrassing yourself. You will lose, Ruth. And when you do, you will set the women's movement back ten years. More. We are dodging a bullet here. Are you the only one that can't see that?
...
Jane: Why is Mel Wulf being such a dick?
Ruth: He thinks I'm gonna lose.
Jane: No way, Jose. Not in my experience.
Ruth: As Mr. Moritz's lawyer, I'm... I'm ethically bound to convey him the offer.
Jane: So would you like help taking apart your life's work, or... is that something you'd rather do by yourself?
...
Charlie [on the phone]: And they'll say it, right? That I'm not a cheater, that the law is unfair?
Ruth: No, Charlie, the government won't say that on its own.
Charlie: But if they don't say it, how will I have won?
Ruth: You...you haven't. But you...you get the money.
Charlie: What about everyone else? When you came to see me, you said...
Ruth: Charlie, the settlement is only for you. No one else can benefit.
Charlie: But could we win?
Ruth: Well...we could, and...and the impact would last generations. But the ACLU feels... it's best if you take the offer.
Charlie: But you're my lawyer, Ruth. What do you think?
...
Ruth: My client was very excited about your offer.
Griswold: Good. Good.
Ruth: He did, however, have some conditions.
Griswold: Conditions? What kind of conditions?
Ruth: First of all, he'd like you to forgive a hundred percent of the money. None of this one dollar business. And he'd like the government to concede that he did nothing wrong. And enter into the court record that Section 214 of the tax code discriminates on the basis of sex and is therefore unconstitutional.
Griswold: I can't agree to that. And you know it.
Ernest: Does Mel Wulf know about this?
[Ruth says nothing]
Ernest: Then we'll see you in court.
...
Marty: You're ready for this. You've been ready for this your whole life. So go in there and let the judges see the Ruth Ginsburg I know.
...
Judge Holloway: Uh, Mrs. Ginsburg, you are aware that the government has three coequal branches? Mrs. Ginsburg?
Ruth: Yes, of course, Your Honor.
Judge Holloway: And that it is the Congress's role to write law?
Ruth [somewhat testily]: Your Honor, I understand how government works.
Judge Holloway: Well, uh, sometimes a law, even a good law, even a law that is legal under the Constitution, may not be good for every individual it affects.
Judge Doyle: I have a question. If I understand correctly, you're concerned about men and women being pigeonholed into certain roles based on gender.
Ruth: Yes, that's correct.
Judge Doyle: Uh, that wasn't my question. It strikes me that the caregiver deduction does the opposite. It helps women be able to work outside the home. Isn't that a good thing?
Ruth: But the law assumes it must be the woman who is supposed to be at home in the first place.
Judge Holloway: Well, that is the case in every family I know. So it's the assumption that's the problem.
Judge Daugherty: Then when can a law differentiate on the basis of sex? Never?
Ruth: When the classification rationally relates to the law.
Judge Holloway: Keeping women out of combat, for example.
Ruth: I'm not sure whether I agree with that example...
Judge Daugherty: Oh, so you think women belong on the front lines now, too?
Ruth:
No, that's not what... Gender, like race, is a biological, unalterable trait. There is nothing that women are inherently better at than men, nor vice versa.
Judge Holloway: Growing a beard? Lactation?
Ruth: No thinking person could possibly imagine that Charles Moritz's gender relates to his abilitt...
Judge Doyle: Why can't we, Mrs. Ginsburg? In most households, aren't women the primary caregivers? Aren't men the breadwinners? Aren't they?
Ruth: Most households, yes, Your Honor.
Judge Doyle: Doesn't that reality suggest that that's the natural order of things?
...
Jim: Congress created this tax deduction to help caregivers go out and work. Caregivers. Folks that, if they weren't working, would stay home. Now, are we meant to believe that this man would have the skill or even the caregiver's instinct to do that?
Judge Doyle: Why can't we believe that? Why does an unwed woman have that instinct but not an unwed man? Or a widower, for that matter?
Jim: Well, respectfully, Judge Doyle, a widower doesn't choose to be a caregiver. It's thrust upon them. And as for women, it doesn't take a legal treatise to prove what a hundred thousand years of human history has made indelibly clear.
Judge Doyle: And Congress can write the tax code to enforce this natural law?
Jim: Congress can write whatever tax code it wants. All I'm saying, Judge, is that given the natural order of things, this man, Mr. Moritz, hasn't suffered as a result. But the country will suffer if the court doesn't find for the appellee.
...
Jim: Your Honors, I am certain there isn't a man among us who wouldn't try to ease his wife's burdens. So I don't see how we can judge negatively the members of Congress who would do the same. And I'm not alone in that. There is a long and honorable tradition in the courts of upholding laws like this one. I, for one, would rather see my government err on the side of caring too much...of trying too hard to help the ladies of this country, rather than to be indifferent to their unique burdens. Now, maybe Mr. Moritz disagrees. Or maybe he just doesn't like paying taxes. Personally, I don't believe that. I believe that Charles Moritz is a victim. Not of his government, but of the lawyers who have used his case to achieve their own ends. Radical social change.
...
Judge Holloway: Counsel for the appellant, you have four minutes for rebuttal.Marty starts to rise, but Ruth grabs his arm...she'll make the rebuttal argument.
Ruth: "Radical social change." When I was in law school, there was no women's bathroom. It's amazing to me now that we never complained. Not because we were timid; we were just astounded to be in law school at all. A hundred years ago, Myra Bradwell wanted to be a lawyer. She had fulfilled the requirements for the Illinois bar, but she wasn't allowed to practice because she was a woman. An injustice she asked the Supreme Court to correct. Illinois was so confident of victory, they didn't even send a lawyer to argue their side. They were right. She lost. That was the first time someone went to court to challenge his or her prescribed gender role. A hundred years ago. "Radical... social... change." 65 years ago, when women in Oregon wanted to work overtime and make more money, as men could, the court looked to the precedent in Bradwell and said no. So then there were two precedents. Then three, then four, and on and on, and you can draw a direct line from Myra Bradwell to Gwendolyn Hoyt, told ten years ago she was not entitled to a jury of her peers. That is the legacy the government asks you to uphold today. You are being urged to protect the culture and traditions and morality of an America that no longer exists. A generation ago, my students would have been arrested for indecency for wearing the clothes that they do. 65 years ago, it would have been unimaginable that my daughter would aspire to a career. And a hundred years ago...I would not have the right to stand before you. There are 178 laws that differentiate on the basis of sex. Count them. The government did the favor of compiling them for you. And while you're at it...I urge you to read them. They're obstacles to our children's aspirations.
Judge Doyle: You're asking us to overturn nearly a century of precedent.
Ruth: I'm asking you to set a new precedent, as courts have done before when the law is outdated.
Judge Doyle: But in those cases, the courts had a clear constitutional handle. The word "woman" does not appear even once in the U.S. Constitution.
Ruth: Nor does the word "freedom," Your Honor.
...
Judge Holloway [after her time is up]: Go on... Professor Ginsburg.
Ruth: The principal purpose of Section 214 is not to protect women nor to discriminate against men. It is to provide caregivers the opportunity to work outside the home. Therefore, as the Supreme Court did in Levy v. Louisiana, this court should fix the law most in line with the legislative intent. Extend the deduction to never-married men. Help all caregivers equally. Charles Moritz was well-raised to be the sort of man we should all hope our sons will become. Charlie deserves our admiration. Not only has he taken on the burden of caring for his very strong-willed mother when no one would expect it of him, but in doing so, he has surpassed the limitations the rest of us and our laws seek to force upon him. We're not asking you to change the country. That's already happened without any court's permission. We're asking you to protect the right of the country to change. Our sons and daughters are barred by law from opportunities based on assumptions about their abilities. How will they ever disprove these assumptions if laws like Section 214 are allowed to stand? We all must take these laws on, one by one, for as long as it takes, for their sakes. You have the power to set the precedent that will get us started. You can right this wrong. We rest our case on our briefs and argument, and ask... that you reverse the tax court's decision.
...
Mel: Kiki! That was perfect. That was perfect.
Ruth: We don't even know who won.
Mel: Doesn't matter. It was right.
Ruth: This is just the beginning.
Mel: Mm! I'm gonna go gloat.