John G. Roberts: In His Own Words

            Since Bush's nomination of John G. Roberts in July, the mainstream media has been falling over itself to paint a rosy picture of the judge as a moderate conservative who will reprise Sandra Day O'Connor's role as the Supreme Court's thoughtful swing vote.  Conservative groups have praised him as a fair and judicious pick and, while they have certainly been skeptical, many progressive groups have refrained from coming out against Roberts until there is more information about his positions.

            A review of his legal briefs and the recent release of federal documents from Roberts' years working for the Reagan and Bush Administrations has shed some light on where he stands, especially with regard to women's rights.

On Abortion/Privacy

• Roberts co-authored a brief in the Supreme Court that: "we continue to believe that Roe was wrongly decided and should be overruled.  The Court's conclusion that there is a fundamental right to an abortion … finds no support in the text, structure, or history of the Constitution."(1)
• In memos written while working for the government, Roberts referred to our Constitutional right to privacy as the "so-called 'right to privacy'" and opined that "such an amorphous right is not to be found in the Constitution."(2)
• In 1985, a virulent anti-abortion group planned to hold a memorial service for aborted fetuses. Roberts called the demonstration "an entirely appropriate means of calling attention to the abortion tragedy." (3)

On Women's Rights

• Roberts repeatedly downplayed women's rights, referring to the "purported gender gap" and "perceived problems of gender discrimination."
• During a landmark gender discrimination case brought by state employees against Washington state for unequal pay, three moderate Republican congress members – Olympia Snow of Maine, Nancy Johnson of Connecticut and Claudine Schneider of Rhode Island – wrote a letter in support of the women's case.  Roberts stated that the letter "contends that more is required because women still earn only $0.60 for every $1 earned by men, ignoring the factors that explain apparent disparity, such as seniority, the fact that many women frequently leave the work force for extended periods of time…I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept.  Their slogan may as well be, 'From each according to his ability, to each according to her gender.'" (4)
• Roberts wrote internal memos that called arguments for pay equity (referred to as "comparable worth" at that time) "anti-capitalist" and stated "It is difficult to exaggerate the perniciousness of the 'comparable worth' theory.  It mandates nothing less than central planning of economy by judges." (5)
• When asked whether a staffer could be nominated for a Clairol award that recognized women who had changed their lives and made a significant contribution, he mocked the nominee's work at Richmond Law School where she helped reentry women get law degrees, smirking: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that is for the judges to decide." (6)
• Roberts is a proponent of states' rights even at the cost of women's safety.  In a 1999 radio interview, he explained his opposition of the landmark Violence Against Women Act (VAWA): "We have gotten to the point these days where we think the only way we can show we're serious about a problem is if we pass a federal law, whether it is VAWA or anything else.  The fact of the matter is: conditions are different in different states and state laws can be more relevant." (7)
• In 1981, the chair of the United States Commission on Civil Rights created a report on affirmative action that Roberts criticized as "perfectly circular." He also stated that "the obvious reason for failure" of affirmative action programs was that they "required the recruiting of inadequately prepared candidates." (8)
• Again, in reference to affirmative action, Roberts stated that "it is constitutionally impermissible to grant preferential treatment solely on the basis of race to those who have not been proven to be victims of illegal discrimination" even to make up for past discrimination (9)
• In 1983, during preparations for a presidential interview for the newspaper Spanish Today, Roberts suggested that Reagan mention that his proposed immigration reform would legalize some immigrants: "I think this audience would be pleased that we are trying to grant legal status to their illegal amigos." (10)
• In a memo about legislation benefiting the Kickapoo Tribe in Texas, Roberts explained the history of the Kickapoo:  "The Kickapoos, originally from the Great Lakes area, did not stop running from their encounter with Europeans until they reached Mexico, where they now hold 17,000 acres of land" and "provide migrant labor in the U.S."  He also stated that the "provisions seem overly generous – particularly in light of the fact that these are, generally speaking, Mexican Indians and not American Indians." (11)
• In a memo regarding a letter written to Reagan complaining about the Equal Employment Opportunity Commission (EEOC), Roberts advised: "We should ignore … the assertion that the EEOC is 'un-American,' the truth of the matter notwithstanding." (12)

Sources:

(1) Brief for the Respondent at 13, Rust v. Sullivan, 500 US 173, 1991
(2) National Women's Law Center
(3) The Washington Post (August 21, 2005)
(4) USA Today (August 15, 2005)
(5) The Washington Post (August 19, 2005), National Women's Law Center
(6) Slate.msn.com (August 19, 2005)
(7) The Washington Post (July 19, 2005)
(8) National Women's Law Center
(9) The Washington Post (August 21, 2005)
(10) The Washington Post (August 19, 2005)
(11) The Washington Post (August 19, 2005)
(12) National Women's Law Center

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