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Judge Roberts's Slap at Women

By Robert Parry
August 18, 2005

The accusation that someone is “on the wrong side of history” is tossed around too freely in Washington debate, but it is relevant in assessing John G. Roberts Jr.’s disdain for women’s rights and thus his fitness to become a key swing vote on the U.S. Supreme Court.

Since World War II, the advancement of women’s rights ranks along with the civil rights movement as one of the most important steps toward making the United States a more just society.

Many of us raised in the 1950s saw our mothers denied jobs for which they were qualified, given menial assignments below their talents, or pushed out of the work force altogether. (My own mother was forced to quit her job after she got married.)

As that history of injustice was addressed in the 1970s and 1980s, how individual men responded was a test for males of that generation much as the black civil rights movement in the 1950s and 1960s was a test for whites. In that sense, the question from the old union song – “which side are you on?” – mattered.

There were legitimate questions about how one remedy or another was formulated or enforced. But the bigger question for a white American during the civil rights era or a man during the rise of feminism was whether they recognized the underlying injustice that the remedies were designed to address.

Two Memos

Which brings us to two little-noticed memos penned by Roberts when he was a young lawyer helping to shape legal policy in Ronald Reagan’s White House from 1982 to 1986. One of the women’s rights issues at the time was whether women should get equal pay for comparable work, and a Washington state “equal worth” case was winding its way through the federal courts.

Three Republican women in the House of Representatives – Olympia Snowe of Maine, Claudine Schneider of Rhode Island and Nancy Johnson of Connecticut – implored the Reagan administration to accept a U.S. District Court ruling in favor of the principle. They wrote that “support for pay equity … is not a partisan issue.”

As the issue heated up in early 1984, Roberts wrote two tartly worded memos, which showed which side he was on.

The first – to his boss, Fred Fielding, on Feb. 3, 1984 – denounced the notion of equal pay for comparable worth, saying “It is difficult to exaggerate the perniciousness of the ‘comparable worth’ theory. It mandates nothing less than central planning of the economy by judges.”

Roberts returned to the issue in a second memo on Feb. 20, 1984, again using language that compared an approach toward rectifying wage discrimination against women to Soviet-style policies, the ultimate insult in the Reagan administration.

Roberts expressed annoyance that three Republican members of Congress would favor what he called “a radical redistributive concept.” He also cited possible justifications for paying women less than men for comparable work, such as the female tendency to lose seniority by leaving the work force for extended periods, presumably for child-rearing.

‘To Each …’

But Roberts didn’t stop there. He included in the memo a quip likening the congresswomen’s advocacy of “equal pay for comparable worth” to the most famous expression of communist principles.

 “Their slogan,” Roberts wrote, “may as well be ‘From each according to his ability, to each according to her gender.’”

The existence of these two memos was reported by the Washington Post on Aug. 16 near the end of a lengthy article on the National Archives’ release of Reagan-era documents on Roberts. But the slap at the women’s rights issue has drawn little attention.

When asked about Roberts’s memos, Olympia Snowe – now a U.S. senator – responded diplomatically. “Hopefully, 21 years later, Judge Roberts possesses an openness with respect to issues of gender-based wage discrimination,” Snowe told the Post.

But the larger point is that Roberts – while in a position to influence policy inside the White House – opted for a knee-jerk right-wing position on an important discrimination issue facing the American people.

Then, rather than showing sensitivity to the long history of injustice inflicted on women in the work place, he chose to make a joke, suggesting that women wanted money they didn’t deserve.

“From each according to his ability, to each according to her gender,” Roberts wrote. [Emphasis added.]

While Sen. Snowe may be right in hoping that Roberts has become more open to women’s rights, the memos are clear evidence that George W. Bush’s choice to replace Justice Sandra Day O’Connor is not a man who saw an injustice against others and sought to right it.

Instead, Roberts demonstrated lawyerly thinking and ideological disdain in opposing a strategy that tried to reduce the unfairness. Indeed, his memos suggest that he wasn’t even aware that there was a serious injustice.


Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His new book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'

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