Sandra Day O’Connor, retired Supreme Court justice, could not contain her delight as she recalled her recent visit to her former courtroom.
“It was absolutely incredible,” O’Connor said in a Dec. 13 program at the Kennedy Library in Boston. “On the far right was a woman. Boom, boom, boom. Near the middle was a woman. On the far left was a woman. Three of them. Now think of it. It was incredible.”
O’Connor, the first woman to serve on the nation’s highest court, had good reason to think that Americans’ “image” of the court “has to change a little bit” with three female justices: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. But image is only part of the struggle for equal rights and equal opportunities for women. Court decisions on women’s issues are part of the struggle too.
On that score, women’s rights advocates have as much cause for concern as for celebration today, in the sixth year of the Roberts Court. The conservative majority fortified with the appointments of John G. Roberts Jr. as chief justice in September 2005 and Samuel A. Alito Jr. as O’Connor’s successor early in 2006 has shown no special awareness of the history of discrimination against women in law and society.
“It’s been very disappointing,” says Marcia Greenberger, co-president of the National Women’s Law Center. “We have lost ground as a result of a number of narrowly divided decisions.”
Women’s rights advocates were given additional cause for concern this month with published statements from Justice Antonin Scalia questioning the line of decisions since the 1970s that rely on the Fourteenth Amendment’s Equal Protection Clause to establish constitutional limits on sex discrimination. In an interview in California Lawyer, the monthly magazine of the California state bar, Scalia repeated his oft-stated contention that the amendment does not prohibit sex discrimination at all. “Nobody ever thought that’s what it meant,” Scalia said. “Nobody ever voted for that.”
Scalia is unlikely to find a majority to reverse those decisions, but his vote along with that of his originalist fellow traveler, Clarence Thomas could help limit future decisions scrutinizing sex-based distinctions in the law. Roberts and Alito seem unlikely to overturn prior rulings, but their records ever since their days in the Reagan administration reflect no special solicitude for gender equality.
In her list of unfavorable decisions, Greenberger starts with two, both from the first full term of the Roberts-Alito Court. In Gonzales v. Carhart, the court in April 2007 upheld a federal ban on the procedure that opponents have provocatively labeled “partial-birth abortions.” The 5-4 majority upheld the law even though it included no exception for procedures deemed necessary to protect the woman’s health. The court had required a health exception to any abortion regulations ever since Roe v. Wade first established a qualified right to abortion in 1973.
A little over a month later, the court in Ledbetter v. Goodyear Tire and Rubber Co. blocked an Alabama woman from collecting several years’ worth of back pay for what a jury found to have been illegal sex discrimination. The alleged pay discrepancies dated back beyond the normal 180-day period for bringing a job discrimination claim under the federal Civil Rights Act, but Ledbetter argued they continued to affect her present salary. The 5-4 majority rejected the argument, adopting what Ginsburg called in her dissent a “cramped” interpretation that Congress overruled by statute two years later.
Ginsburg, then the only woman on the court, emphasized her discontent with both decisions by reading her dissents from the bench. In the abortion case, Ginsburg faulted the majority (in an opinion by Justice Anthony M. Kennedy) for adopting what she called an “antiabortion shibboleth” that women suffer depression and a loss of self-esteem after an abortion. In his opinion, Kennedy conceded there were “no reliable data” to measure the supposed phenomenon.
Greenberger acknowledges that the Roberts Court has had a mixed record in post-Ledebetter civil rights cases, with some helping plaintiffs, including women, others not. A series of rulings strengthening protections against retaliation for complaining about discrimination includes one brought by a Nashville woman, who accused her supervisor of sexual harassment during an internal investigation of a complaint by a coworker (Crawford v. Metropolitan Government of Nashville and Davidson County, 2008). On the other hand, women who often enter or re-enter the workforce at an advanced age after raising a family may be particularly disadvantaged by a decision raising the burden of proof for plaintiffs under the Age Discrimination in Employment Act (Gross v. FBL Financial Services, 2009).
Like Ledbetter, Gross hurt civil rights plaintiffs without regard to gender. But as long as women do not enjoy equal rights in the workplace or elsewhere, their advance will be hampered by rulings that limit the force of laws aimed at prohibiting sex discrimination. Three female justices represent an advance for women, but grouped together in the court’s liberal bloc they need at least one vote from men in a conservative bloc that has shown less than strong interest in women’s equality up till now.