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.
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
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
‘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
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.