QUESTIONS ABOUT JOHN ROBERTS: WHAT HIS RECORD COULD MEAN FOR WOMEN
August 2005
The more Americans learn about John Roberts, the clearer it becomes that his views are
far outside the mainstream. Repeatedly, John Roberts has expressed a narrow and
regressive view of laws protecting women’s rights and civil rights. Repeatedly, he has
advocated positions that would undermine women’s access to jobs, education, and fair
pay. And he has questioned whether the Constitution can be interpreted to protect our
right to privacy and our freedom from government intrusion into private family decisions.
John Roberts is no longer a blank slate. He has a record that poses serious threats to the
gains women have made. Here is some of what we know today:
Making it Tougher to Challenge Employment Discrimination and Ensure Equal
Employment Opportunity. Roberts has argued consistently to limit both the reach of
employment discrimination laws, and also the ways such laws can be used to expand job
opportunities for women and people of color.
•
In criticizing two proposed Department of Justice (DOJ) settlement letters in
October 1981, Roberts asserted that proof of discrimination is not enough to
establish a violation under Title VII, the main federal employment discrimination
law. Under his rationale, an employer could have a “no African Americans” or,
presumably, a “no women” hiring policy without running afoul of the law. He
argued that a violation would occur only if a person proved that he or she was
“more qualified” than the person hired, even if such qualifications were never
considered in the hiring process.
•
Roberts sought to narrow the rules federal contractors used to open job
opportunities for women and people of color. Under Executive Order 11246,
federal contractors are prohibited from discriminating in their workforce on the
basis of race, color, sex, religion or national origin; and are required to take
affirmative action to correct unlawful workforce disparities. Where problems are
identified, contractors can set flexible, reasonable goals to increase the number of
women or people of color in particular jobs. But Roberts rejected such efforts,
mischaracterizing the goals and timetables required under Executive Order 11246
as “quota-like concepts,” even though the regulations explicitly prohibit quotas.
He argued that any efforts to establish hiring or promotion goals constitute
impermissible “preferences,” and he sought to limit such efforts solely to outreach
and recruitment. In practice, such views would mean that federal contractors
would no longer be measured on whether they actually had expanded job
opportunities for women and people of color.
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Dismissing Efforts to Remedy Pay Discrimination Faced by Women. Roberts
criticized efforts to challenge wage disparities facing women in the workplace.
•
Roberts wrote disdainfully about a letter from three female Republican
Congressional representatives urging the Administration to support efforts to
ensure that women are paid fairly for their work. He argued that the then 40 cent
pay gap between men and women could be explained away by factors such as
seniority and women leaving the workforce for family reasons, refusing to
acknowledge that other factors such as discrimination also may play a role. He
also criticized a legal theory that would have ensured that women are paid the
same as men for equivalent work, referring to it as a "radical redistributive
concept" and writing, "[t]heir slogan may as well be ‘From each according to his
ability, to each according to her gender.’”
Undermining Efforts to Ensure Equal Protection Under the Law for Women.
Roberts argued against legal strategies used to tackle unequal treatment of women.
•
While a Special Assistant at the Department of Justice, Roberts urged the
Attorney General not to approve a request from DOJ’s Civil Rights Division to
intervene in a sex discrimination case against the Kentucky state prison system.
The prison system was alleged to have denied female prisoners access to the same
types of vocational education programs as male prisoners. He rationalized that
such discrimination could be justified because it was too expensive for states to
provide equal programs for women.
•
In memoranda and other writings, Roberts questioned whether courts should use a
special, heightened legal standard when evaluating rules or practices that treat
women and men differently. The Supreme Court had established a high standard
to make it more difficult to justify rules that apply to men in one way and women
in another. Roberts rejected using this higher standard, despite contrary Supreme
Court precedent.
Weakening Protections Against Sex Discrimination in Education. Roberts argued to
sharply limit the reach of Title IX, the groundbreaking law that prohibits sex
discrimination in federally funded education programs or activities.
•
Roberts supported a proposal that schools should not be covered by Title IX just
because students receive federal financial aid. Although the proposal did not
prevail – even within the Reagan Administration – he later endorsed a different
Administration position that Title IX should only cover a specific program, such
as a school admissions office, rather than an entire school or educational
institution. This view ultimately succeeded in the Supreme Court, effectively
enabling schools and universities to avoid complying with Title IX’s prohibition
against sex discrimination in programs like athletics. Congress later overturned
the ruling by passing the Civil Rights Restoration Act.
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• In another narrow and regressive reading of Title IX, Roberts filed a brief arguing
that a student who had been sexually harassed by a teacher should not be able to
obtain money damages under Title IX. His argument was rejected unanimously
by the Supreme Court.
Threatening Access to Reproductive Health Care. Roberts’ record raises serious
questions about whether he would uphold the constitutional right to privacy recognized in
the Supreme Court’s landmark Roe v. Wade decision. He also has advanced arguments to
limit access to information about reproductive health care services.
•
While serving as Deputy Solicitor General under the prior Bush administration,
Roberts co-authored a brief in a case that considered whether the Administration
could prohibit doctors participating in federal government-sponsored family
planning programs from discussing abortion with their patients. The brief Roberts
co-wrote went well beyond the central issue in the case to assert gratuitously that
“Roe was wrongly decided and should be overruled…. [T]he Court’s conclusion
in Roe that there is a fundamental right to an abortion . . . finds no support in the
text, structure, or history of the Constitution.”
• In a December 1981 memorandum to Attorney General William French Smith,
Roberts refers to a “so-called right to privacy,” suggesting his skepticism about
the Constitutional basis for such a right. Further, in a draft article he prepared for
the Attorney General, he uses the example of the right to privacy to criticize
courts for labeling too many rights as “fundamental.” For support, he draws on a
dissent criticizing the seminal case Griswold v. Connecticut, which struck down
as unconstitutional a law that prohibited the provision of medical advice about
contraceptives to married couples.
• Roberts played a lead role in Bray v. Alexandria Women’s Health Clinic, a case
involving access to women’s health clinics. Under his leadership, the government
voluntarily chose to intervene in the case on the side of anti-choice protestors who
routinely used violence to block access to health care clinics providing
reproductive health services. Roberts argued before the Supreme Court against
the application of a federal civil rights law that the courts were then using to
protect women against the violence.
Undermining Patient Rights to Quality Health Care. Roberts would have limited the
ability of patients to seek an independent review of a health plan’s denial of coverage.
•
While in private practice, Roberts argued on behalf of a health maintenance
organization to deny patients the right to get an independent review of an HMO
decision to deny coverage for a medical treatment. The Supreme Court rejected
the argument in a five-to-four decision. As a result, patients preserved their right
to an independent assessment when their health plan denied coverage.
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Undermining Efforts to Strengthen Voting Rights. Roberts opposed efforts to provide
stronger tools for ensuring fairness in voting systems across the country.
• In 1981 and 1982, Roberts actively participated in the Reagan Administration’s
efforts to weaken provisions intended to strengthen the 1965 Voting Rights Act.
These efforts failed and Congress overwhelmingly approved a bill with expanded
enforcement tools.
Removing the Ability of Federal Courts to Ensure Compliance With the Law.
Roberts supported efforts to disempower federal courts and, thus, reduce the strategies
available to ensure state compliance with important constitutional and legal principles.
•
Roberts argued in favor of a Congressional proposal to strip federal courts of their
jurisdiction to hear cases involving abortion, busing and school prayer. The
proposal, for example, would have prohibited federal courts from ordering busing
in school desegregation cases. His position, however, was rejected by others in
the Reagan Administration, and the Administration eventually opposed the
legislation. If Roberts’ view had prevailed, federal courts would have been
unavailable to help ensure that policies on abortion, busing and school prayer
conform with the Constitution and key civil rights principles.
Restricting Congressional Authority to Enact Critical Protections. Roberts has
argued to limit the power of Congress to enact laws and regulations that hold states
accountable.
• In a 2003 case, Roberts criticized his colleagues on the D.C. Circuit for failing to
re-evaluate a decision that upheld an Endangered Species Act provision protecting
nearly extinct species. Roberts questioned the analysis used to uphold the
regulation, arguing that Congress’ authority to regulate states under the
Constitution’s commerce clause should be read more narrowly. The impact of
Roberts’ views could be far-reaching. Congress’ power to regulate interstate
commerce has been the basis for numerous federal protections, including
environmental, health and safety, civil rights, and labor standards. Roberts’
arguments to limit Congressional regulatory authority could undermine efforts to
ensure that states adhere to critical standards and protections.
CONCLUSION
John Roberts’ record raises deeply troubling questions because he consistently has urged
the most narrow, restrictive reading of laws of critical importance to women and people
of color. His record generates serious doubts about his commitment to equal justice
under the law, and it demands rigorous, probing questions by the Senate. No one is
presumptively entitled to a seat on the Supreme Court. Every nominee must demonstrate
an ability to apply legal principles without regard to personal views, evaluate the facts of
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each case in a fair and even-handed manner, and interpret our Constitution and our laws
in a manner that respects the principles of equality and fairness that Americans hold dear.
Our nation deserves Supreme Court justices with an unwavering commitment to the
principles of equality, fairness, and justice embedded in our Constitution and our laws.
The Senate should not confirm any nominee who fails to meet this standard.
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