One pattern that emerges from John Roberts’s record is that his support for limiting federal rights and remedies important to women leads him to ignore the existence of sex discrimination and to shut his eyes to the real-world consequences of his legal arguments. With the hearing on Judge Roberts’s confirmation to the Supreme Court starting on Monday, we’ll be looking out for questions—and, more importantly, answers—that will tell us more about this aspect of Roberts's record.
When he worked for the Reagan administration in the 1980s, Roberts repeatedly ignored the existence of sex discrimination. In one memo he wrote of “perceived problems of gender discrimination” as if there were no actual gender discrimination. In another, he wrote of “the canard that women are discriminated against because they receive $0.59 to every $1.00 earned by men. . . ” despite ample evidence that the pay gap for women was (and is) indeed based in part on discrimination. In 1985, he endorsed the statement that “Today, women and men are freed of former stereotypes and may enter any field of work they choose,” even though women’s and men’s choices of employment are still constrained by discrimination and prejudices, and certainly were 20 years ago.
Roberts also repeatedly failed to acknowledge the harmful impact that his arguments for limiting remedies against sex discrimination would have on women. As Deputy Solicitor General, he argued in one case that Title IX did not allow for recovery of damages for any intentional discrimination, although this position would have left victims of sexual harassment like the 10th grade girl in that case – whose teacher had sexually abused her – with no Title IX remedies whatsoever. He argued for an interpretation of Title IX that would have exempted intercollegiate athletics programs from its non-discrimination requirement. His argument also would have produced other absurd results; for instance, Title IX would not protect students from sexual harassment if they lived in dorms that were built without federal funds, but they would be covered by Title IX if they lived in a different building that was built using federal money. In another case, Roberts argued against a federal remedy for women barred from entry to health clinics by massive, military-like Operation Rescue blockades, he said such women could simply “repair to state court” – even though state law and remedies had proven inadequate and the presiding federal judge had warned that eliminating federal protections could lead to bloodshed.
Sex discrimination was a fact of life when Roberts said all these things—and it still is. Women need to be able to go to court to seek remedies for discriminatory conduct. We need a Supreme Court Justice who understands this.
