John Roberts' woman problem.

The law, lawyers, and the court.
Aug. 19 2005 6:33 PM

John Roberts' Woman Problem

The humorless feminists strike again.

Score one for Bruce Reed. He picked up on what I completely missed this week: that the most telling aspect of Supreme Court nominee John Roberts' adolescence was not his staunch refusal to get high in the woods, but his contempt for all things female. Closely reading an essay Roberts penned in 1972 for his high-school newspaper, Reed notes that the 17-year-old went beyond arguing for keeping girls out of his Catholic all-boys school. He evinced a horror of "giggling and blushing blondes" that seems to have been airlifted right out of the 1950s: poor beleaguered Roberts and a gaggle of giggling Gidgets.

Yesterday's info dump from the National Archives, raining down more than 38,000 pages of memos from Roberts' service as a legal adviser in the Reagan White House from 1982-86, suggests that Reed has the better of it. What's most startling about Roberts' writings isn't always the substance. Some of the policy ideas he rejected—like that of paying "comparable worth" for traditionallyfemale jobs—may have deserved the scorn he evinced. What's truly is shocking is his dismissive tone, which seemed to surprise even ultraconservative Phyllis Schlafly, who described it yesterday as "smart alecky." Gender disparities are invariably "perceived" or "purported," in Roberts' eyes. Every effort to solve them is laughable. At a moment when serious inequities in women's wages, employment, and opportunities existed in this country, Roberts seemed to dismiss every attempt to remedy them as a knock-knock joke.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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In a 1985 memo about whether a government lawyer could be nominated for an award program honoring women who changed professions after age 30, Roberts wrote and approved the nomination but added: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide."

In 1983, while reviewing the "Fifty States Project" that Elizabeth Dole had compiled, surveying various state proposals for solving what he deemed "perceived problems of gender discrimination," Roberts took pains to distance the White House from several initiatives he considered "highly objectionable." He wrote, "I think it is imperative that the report make clear (as it presently does not) that the inventory is just that, an inventory, and that proposals appearing in it are not necessarily supported by the administration." He dismissed, from that survey, a Florida proposal that would have charged women less than men to attend state schools to compensate for their lower earning power as "presumably unconstitutional." He condemned a California law requiring the order of layoffs to reflect affirmative action and not merely seniority as at odds with the administration's policies.

Another memo has Roberts blasting the proposed Equal Rights Amendment, dismissing it as an attempt to "bridge the purported 'gender gap.' " In a later memo, Roberts referenced a proposal from a Reagan supporter for elevating Sandra Day O'Connor to chief justice and appointing a second woman to replace her if Warren Burger retired—and "Presto! The gender gap vanishes." Roberts' response: "Any appointments the president makes will not be based on such crass considerations," Roberts added. "The president's strong record on women's issues—as it becomes more widely known—should suffice to close the 'gender gap.' "

Oddly enough, even Sandra Day O'Connor isn't above such crassness. But then she lived through the "purported" gender gap in a way Roberts did not.

Pile these memos onto what we already know of Roberts and gender issues: that later and as a lawyer in private practice, Roberts would argue for narrowing the scope of Title IX—the statute that bars gender discrimination at any school receiving federal funding.He advocated for court-stripping legislation that would have kept theSupreme Court from reviewing certain classes of cases, including abortion, arguing that such legislation would not "directly burden the exercise of any fundamental rights." He urged the Justice Department not to get involved in a case in which female prisoners seeking job training claimed discrimination, even though his superior, the assistant attorney general for civil rights, disagreed.

Does all this add up to John Roberts, woman-hater?

Elliot Mincberg, senior vice president of People for the American Way, told the Chicago Tribune today, "You do see a real clear lack of regard for—and even it could be argued, hostility toward—laws and theories and arguments that would promote equality for women in important ways." And Kim Gandy, president of NOW, fumed in the same paper: "I don't see Roberts' positions as conservative. ... I know a lot of conservatives who expect women to be paid fairly, who think women should become lawyers if they want to be lawyers. That is not a conservative position, that is a Neanderthal position. It's unfair to conservatives to call the positions he takes conservative."

And does anyone besides me dread the depressing prospect of Sen. Dianne Feinstein and 17 men on the Senate Judiciary Committee tenderly probing at Roberts' sensitivity to women's issues, in a sad retread of the Clarence Thomas hearings?