'On The Basis Of Sex' Screenwriter On Making Ruth Bader Ginsburg's Story Like A 'Rocky' Movie [Interview]

The life and career of Ruth Bader Ginsburg is worth several movies, and in fact there was already a documentary about her out this year. But for her narrative biography, it took family to truly capture the heart of Ginsburg the person as well as the lawyer and ultimate Supreme Court Justice.

Daniel Stiepleman is Ginsburg's nephew and On the Basis of Sex is his first produced screenplay. It focuses on Ginsbyrg's early life and marriage to Martin Ginsburg. After graduating Harvard, in one of the first classes that allowed women, the Ginsburgs try the Moritz case to set a precedent for discrimination on the basis of sex. Charles Moritz (Chris Mulkey) was denied a tax write-off as a caretaker because the law assumed only women would be caretakers.

Stiepleman went to film school and earned a Nicholl Fellowship from the Academy, but decided to join the Peace Corps at 22 to find his worldview. He met his wife in the Corps and became a high school English teacher where he encouraged his students to think about more interesting questions. That provided him the lightbulb moment to write this script about his aunt and uncle.

Now Stiepleman is attached to three more screenplays, including Debriefing the President based on John Nixon's book about interrogating Saddam Hussein, the Usula le Guin adaptation Planet of Exile and the Sharon Draper Adaptation Out Of My Mind. Stiepleman spoke with /Film about On the Basis of Sex which opens on Christmas Day and expands to more theaters in January.

Did you title the movie On the Basis of Sex to be a little salacious for viewers who don't know the context?

No, but after I came up with the title, it occurred to me that there's going to be a moment where people go, "Wait" and they realize that that's exactly the issue. It's not salaciousness. It's that our mind goes there first. That seems part and parcel with sex discrimination and stereotyping. So if even the title puts you in the headspace of thinking about those topics, then I feel like it was probably the right title.

How did you center on the Moritz case as the main issue of the script?

Ruth asked me the same question. When I called her and said I wanted to write this movie, she said, "Why that case? I argued bigger cases, more important cases, cases in front of the Supreme Court." And I said, "Yeah, but it's the only one you and Uncle Martin ever argued together." That's what the movie's about, right? It's not just about a landmark case. It's about the fact that they together are trying to figure out how to live at home what they're also fighting for in court which is true equality. For me, Ruth in the movie is the same age I am now. So for me it was an exploration of figuring out how she went from being my age, a young professional, I have to consider myself young, I have two young kids at home. And to become the woman who accomplished so much on behalf of so many. So for me, this case embodied all that. You can't separate what she accomplished from her marriage to Uncle Martin. They were such a pair and such a team, and I hope the film depicts that. I think it does, where neither of them is really perfect. It's just that together they become a perfect unit.

Is it telling that sexism didn't begin to change until it affected a man?

I think it's absolutely telling, but I'm not sure that I would totally agree that sexism didn't begin to change. If there's one thing I learned from writing this movie and talking to Aunt Ruth it's that sustainable change means you have to change the culture, and you also have to change the laws and the institution. By the time we're looking at the '70s, sexism in the culture was starting to change and that people were becoming more aware of it. Women were becoming more vocal about it and what Ruth did that was so revolutionary was that she taught the judges and legislatures that the law and institutions and to catch up with the culture.

So I could say the laws about sexism didn't begin to change until they affected a man.

Again, I'm going to politely disagree with you and say it's not that they first started. I'm sure it couldn't have been the first time it ever impacted a man. It was the first time someone brought that case up and said, "See, look at this." The law had been wrong for a long time. Now I'm being very Ruth Bader Ginsburg with you, being very specific and exacting.

Was there ever a draft that included more of the Reed vs. Reed case?

There was a draft in which the last scene was her in the back of the room as Allen Derr starts arguing the Reed vs. Reed case, just the first few sentences. So not really, but a little bit. The ending of her walking up the steps is much stronger.

So the cases were always intertwined?

It was always very important to me that the movie not be the story of how Ruth Bader Ginsburg saved women. It had to be the story of how Ruth Bader Ginsburg became the woman who went on to do such incredible things. In an early draft, Reed v Reed felt tacked on at the end. It was like what is this doing here? The movie's over. So as a writer, to make Alan Derr feel like he had to be a part of it and to make that story be a part of it required going back and introducing it as it was happening from basically the midpoint of the movie.

Did it specify in your script that the real Ruth walks up the steps at the end?

That was Mimi Leder's idea. The script ended with Felicity as Ruth walking up the steps going in to hear Alan Derr argue Reed v Reed. Mimi called me probably a week into shooting and said, "I have this idea. Do you think your aunt would do it." With all the caveats, she'd have to check with the court. There's legal counsel, there's ethics questions. She would have to look into it but if she can, I think she would love it. Then I said, "But if you shoot it, you better put it in the movie because I don't want to have to be the one who calls her and tells her she got cut out of her own life story."

Did the courtroom drama genre give you a structure for the story?

No, in fact that structure almost got in the way. At first, I thought okay, this is a courtroom drama. So I was looking to movies like The Verdict. What I realized is because it's Federal Appeals Court, you can't treat it like a courtroom drama. Courtroom drama has the procedures of all the different steps that happen in court. Then there's time off and you leave court, you come back to court. What I realized is I can't treat this movie as a courtroom drama because Appeals Court doesn't work that way. It's one showdown right at the end. So it's not a courtroom drama. It's a boxing movie.

It's still the preparation.

Yeah, and that was important to Ruth. She said, "Let brief writing be part of it. People should know that it's not all in the oral arguments. It's the writing of the brief." Structurally I treated it like it was Rocky. The preparation is getting ready for the big match. I think you really see that moot court.

Is it documented that Dean Griswold undermined the female Harvard students?

That was a real story. That event absolutely happened and that was Ruth's answer. Even knocking over the ashtray with the cigarettes happened.

It's great that she mocks his question, but when he asks, "Why do you belong at Harvard?" did any of the women reply, "Because I got in, motherf*****!"

No, I don't think anyone would have had that kind of gall. The answers ranged from the serious to the sarcastic. I think one woman did say "to find a good husband" sarcastically, but Ruth has to have the best answer in the scene.

Sure, and without my expletive, but my first thought was still they got into Harvard. That's why they belong.

By the way, they added nine extra spots for the women. It wasn't even true that they were taking a place [from a man]. He would claim years later, when it was recognized how atrocious the question was, that he was looking for ammo for people who challenged him for letting them in. Ruth says, "He says that, I believe him." I read a quote somewhere where Elena Kagan said, "Bullsh*t."

And that wasn't the only scene. In classrooms they undermined the female students.

The law professors would have women's day where that was the only day they would ask women any questions in the class. Then they would ask only women questions in class. They claimed they weren't being cruel, they were being kind because it wasn't fair to expect the women to keep up with the men. There really was no bathroom in Langdell Hall for women. They had to go across the quad to another building to go find a bathroom. The Harvard Man speech I made up.

We know Ruth is a badass. Was it important to show her get rattled by Mel and the judges because she's still human?

Yeah, and for me it was the story of how did she become this woman? What she had to learn how to do was not be rattled by these overbearing men of authority. When I was reading her files from the '70s, in the marginalia of other opinions, she would have these really cutting sarcastic remarks. One of the conversations she had was about recognizing that she would have those thoughts but she couldn't say them in front of a judge. That she had to present herself in a certain way, sort of manage her emotions and her sarcasm and her anger in order to, frankly, be more appealing but more persuasive.

People have pointed out with no sense of irony that Marty doesn't have as much to do in the movie as Ruth. Isn't that the plight of most women in biographies of men?

Yes, it is. It's fascinating. People are like, "You made this choice to turn Marty into the typical female wife role in a biography." To some degree I made that choice but I didn't really have a choice because Uncle Martin did the cooking and Uncle Martin brought her the case. To the very end of his life, literally the last days of his life, he said the most important thing he ever did was hand Ruth that Tax Court Advantage sheet because it allowed her to do the things that he did. That's just the kind of guy he was. That was the kind of marriage that they built. And I can tell you as a guy, the bar is incredibly low to be considered a good husband and a good father. It's really easy to pat yourself on the back and be like, "Everyone's complimenting me because I took my kid to school one day. I'm a great father." But statistically we know that even in two income cities, in liberal elitist places that women are statistically doing much more of the housework and the childbearing than their husbands. That tells us that a lot of men are clearly taking the pat on the back and not actually living up to the ideal. What's hard about Uncle Martin is he lived that ideal. He believed in it. When I got married, my wife and I looked to Ruth and Marty as our role models for how a marriage is supposed to work. It was a challenge to live up to that ideal and to feel confident in that role, but I became a better husband and a better father and a better man and a better writer because I did it. Part of the motivation for writing the movie was that I hoped that Ruth and Marty — we were lucky, we had them as role models to show us the way and I hope now more people, a big broad audience of people will have them as role models as well. I think the beauty of Armie's portrayal of Uncle Martin is he never treats it as a burden. He was never the type of guy who's like, "Fine, I'll cook again." He loved it. It was part of the joy of sharing his life with Ruth was taking care of the kids and doing the cooking. The beauty of Armie's portrayal is he does it with such confidence and sexiness and charisma and charm that you never once for a second think that he's some sort of beta male who is under Ruth's thumb. That just wasn't the nature of their relationship. They were just equals.

I feel you can make a historical movie in any era and find an establishment resisting progress. Do you have any insight into why every generation thinks they're the last defense against anarchy when this happens in every generation and ends up in favor of progress?

Is it true that every generation ends up in favor of progress?

In my basic historic knowledge I think we have women's suffrage, Civil Rights, ending slavery... Wouldn't it be so much easier if we didn't have the same fight every 20 years over something else?

I am thrilled by your optimism.

I'm not optimistic. I think it's a fight every time.

I don't know. Like I said, the sustainable change comes from changing the culture and the law and in just the right timing. I think that's where feminism in a lot of ways succeeded where other changes haven't. They got the timing right and part of that was just luck. You look at something like issues around voting rights or access to voting for minority voters. We thought we made that progress and now we seem to be slipping back again. You realize these things need to be held onto and precious and dear. We can't take them for granted. I think that's the benefit of a movie that looks backwards a little bit. We have to remember that these things had to be fought for and they'll probably need to be fought for again.

How long have you lived with this story before thinking of it as a screenplay?

I first heard the story in 2010 when my Uncle Martin died. Someone gave a eulogy in which he briefly mentioned the only case Ruth and Marty ever argued together and I thought that's the one. That's the movie I've been looking for. Then I thought, "What kind of *sshole am I? I'm sitting here at my uncle's funeral mining his life for material. You can't do that. 'Hi, Ruth, I'm so sorry. Can I have the rights?'" So I sat on it for a year. Then in August 2011 I called Ruth and said, "I have this idea. I'd like your permission. If possible, I'd love your help." She said, and I quote, "If that's how you think you'd like to spend your time." Obviously it was and here we are seven and a half years since that.

So not in 1993 when she became a Supreme Court Justice?

No, I didn't know the story then. I never heard the story until adulthood. In 1993 I was 12, so no. As a kid, Ruth was my quiet, cerebral aunt who brought me a copy of the U.S. Constitution every single year for Hanukah. Like, five years in a row. People would talk about the important work that she had done and I was always kind of surprised by that because she didn't seem the type. I had the archetype in my head of what a feminist in the '70s was. It was Gloria Steinem standing in front of a crowd rallying everyone to their feet. Ruth was so quiet. That was part of the allure was to understand that. No, it wasn't until I figured out that I had a worldview that I understood that that was the story I wanted to tell.

Were you aware of the documentary RBG being made while you were in development?

I became aware of it because the day Armie and Felicity went to meet Ruth, the previous appointment was that she was filming one of her interviews for the documentary. That was the day I became aware of it. I think the doc does a beautiful job of taking a complicated subject and making it accessible. I don't mean the subject being Ruth. I mean the subject being Ruth's legal career and making it accessible for a broad audience. I think it's beautifully done. I think it's a lovely portrait of my family and I am incredibly relieved that our case is not in it. In a way, it's like our movie is a prequel to that one.

Do you ever think about a movie about her later career?

I think I'm Ruth Bader Ginsburg'ed out for now. The Antonin Scalia movie, she could do a cameo in that one.

Which came next, Debriefing the President or Planet of Exile?

Oh no, there've been several in between. The next one that I think is closest to being a movie is a movie I wrote for Big Beach that they're financing and producing. We're talking to directors right now, called Out of My Mind. It's an adaptation of a young adult novel. I wrote Planet which Ursula le Guin's son just read and gave me brilliant notes on. I'm writing another script for Participant right now and then it will be Debriefing. So I've been very fortunate that I've built this into a career of big, hard, fascinating to me movies that are challenging to figure out.

Have you started Debriefing the President yet?

Only the research.

What have you found to be the difference between adaption history and adapting fiction?

You know, my process is very similar. For example, Planet of Exile is a giant sci-fi movie but my first step was to call NASA Jet Propulsion Laboratory and say, "Here are all the facts about this planet that are woven into this book. What else can you tell me about the planet?" Talking to astrophysicists and astrobiologists and them saying, "This is how we believe creatures on a planet like this would evolve. By the way, all the leaves on the trees would be black." Leaning into that, it's a movie about colonialism and cross-culturalism, so I delved into research just like I did on On the Basis. It's more analogy and metaphor so I delved into research about the British and Zulus and Native Americans wandering out in the wilderness into settler cities and missionaries on the Amazon and things like that, to get into the heads of the characters.

Did you have a way into Debriefing the President or has it been illuminating all the things you didn't know?

I think the fun and the challenge of that is not relying too much on what I think I know already. Letting myself learn from the characters and from the people and to take what they're telling me and to put aside, to let the research lead the way and let characters have different beliefs than I have, and to not set up the characters as straw men. To let them be real people with real beliefs and real world views which is especially hard when you're doing it with Saddam Hussein.

Is he a character in the film?

He will be, yeah, because it's about the CIA analyst who interrogated him.

Is Out of My Mind a franchise so there are more books if it does well?

I don't believe so. I think it was one book. It's by Sharon Draper.