In memos John Roberts wrote during the Reagan Administration, he said that there should be no “heightened scrutiny” of government laws and policies that discriminate based on sex. According to Roberts, requiring a rigorous justification for sex discrimination -- “heightened scrutiny” -- represented “an unjustified intrusion into legislative affairs” and a “degree of judicial intrusion not invited by the Constitution.” The problem with this is that the Supreme Court had already rejected that view in 1976 when it ruled that, under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, heightened scrutiny does apply to any law or government policy that makes distinctions based on gender—which means such a law must be ruled unconstitutional unless it is substantially related to important governmental objectives. Merely having a “rational reason” is not enough.
This is not some arcane legal distinction that matters only to lawyers. Before the 1970’s, under the lower “rational basis test,” many laws harmful to women (and men) were upheld – like a law barring women from working as bartenders unless they were the wives or daughters of male bar owners, and a law making it easier for women to avoid jury duty. But under heightened scrutiny, numerous laws that excluded women from opportunities in education, employment, and other arenas of American life have been struck down.
Roberts’ memos, however, show that he objected to heightened scrutiny for sex discrimination and, based on that position, even recommended against Justice Department intervention in a sex discrimination suit against the Kentucky prison system. The head of the Civil Rights Division had recommended intervention, saying there was “a very strong record that the Kentucky state prison system discriminates against female inmates in the vocational training and work opportunities made available to them” – and that official was William Bradford Reynolds, who turned out to be so hostile to civil rights enforcement in many areas that he was later rejected by the Republican-led Senate Judiciary Committee for confirmation to a higher position in the Department of Justice. But Roberts opposed intervention – which means he was to the right of Reynolds on civil rights enforcement in this case!
Roberts nonetheless urged against intervention because he said it would force Department of Justice attorneys to argue that the Constitution requires special protection against sex discrimination. In other words, Roberts recommended that the Department of Justice avoid the litigation because it would require the attorneys to make arguments against sex discrimination that had been the law since 1976.
Roberts also argued against intervention on the ground that discriminatory treatment of men and women in the prison’s vocational programs was acceptable in light of “tight state prison budgets.” But the Supreme Court has never allowed a state or anyone else to discriminate just to save money.
In the end, Roberts’ recommendations were not adopted, the Department did intervene in the Kentucky case, and the plaintiffs won. But the arguments made by Roberts are no small matter. In fact, at least one conservative Senator, Dennis DeConcini, voted against the confirmation of Robert Bork to the Supreme Court in 1987 because Bork rejected heightened scrutiny of sex discrimination. As Senator DeConcini said on the floor of the Senate on October 22, 1987, in explaining his vote against Bork’s confirmation, Bork’s position on heightened scrutiny meant that Bork was “outside [the] area of mainstream conservatism which I think is absolutely necessary.”
