Topic: Gender Discrimination
Senator: Biden
Date: SEPTEMBER 13, 2005
Contents
BIDEN: Judge, is gender discrimination, as you've written in a memo, a perceived problem or is it a real problem?
ROBERTS: The memo you talked about, Senator, I've had a chance to look at it.
BIDEN: I'll bet you have.
ROBERTS: It concerned a 50-state inventory of particular proposals to address it. "Perceived" was not being used in that case to suggest that there was any doubt that there is gender discrimination and that it should be addressed.
ROBERTS: What it was referring to was a vast inventory. And I was not sure if the particular proposals in each case were supported in every state of the 50-state survey that was involved.
Of course gender discrimination is a serious problem. It's a particular concern of mine and always has been. I grew up with three sisters, all of whom work outside the home. I married a lawyer who works outside the home. I have a young daughter who I hope will have all of the opportunities available to her without regard to any gender discrimination.
There's no suggestion in anything that I've written of any resistance to the basic idea of full citizenship without regard to gender.
BIDEN: Let me ask you a question then, Judge. And I'm glad to hear that.
Do you think that if a state law distinguishes between a right that your daughter may have and your son may have, or your wife may have, or your sister may have and your brother may have, that the Supreme Court should engage in heightened scrutiny, not just look and see whether or not it makes any sense, but take an extra special look?
You and I know the terms, but the public listening here, the Supreme Court has said since 1971, you know, when a state passes a law that treats in any way a woman different than a man, there may be a rational for it, but the Supreme Court's going to take a very close look. Not strict scrutiny, which means you can hardly every get over that bar, like race, but going to take a heightened -- they're going to look at it more closely.
Do you think that that needs to be done, the Constitution calls for that?
ROBERTS: Yes, Senator, I do. And I, again, always have.
The confusion is in the use of the term. There are those who use the term "heightened scrutiny" to refer to what you just called "strict scrutiny," which is generally limited to issues of race or similar issues.
The discrimination on the basis of gender, distinctions on the basis of gender, is subject to what the Supreme Court has called intermediate scrutiny.
ROBERTS: There has to be a substantial government interest -- an important government interest and a substantial connection in the discrimination. But the Supreme Court's equal protection analysis has three tiers now.
BIDEN: I understand. My time's running out. I'd love to hear the explanation of the three tiers. But let's stick to this one for just a second.
Then, explain to me what you meant, 10 years after the decision laying out this level of scrutiny, when you wrote an '81 memo to your boss. You wrote that gender, quote, "is not a criterion calling for heightened judicial review."
What'd you mean by that?
ROBERTS: Referring to what you called strict scrutiny.
BIDEN: He didn't know the difference between heightened and strict?
ROBERTS: Well, I was about to lay it out. You said you didn't want to hear about it.
(LAUGHTER)
ROBERTS: Strict scrutiny is the...
BIDEN: I know what that is. I wonder what you meant by that.
SPECTER: Senator Biden, let him finish his answer.
BIDEN: But I have no time left, Mr. Chairman. I understand the answer.
(LAUGHTER)
The Supreme Court has three levels of scrutiny. My point was, in the context of this memo, in the context of this memorandum, the question was whether or not the court should in fact have a heightened scrutiny.
ROBERTS: And, Senator, the memorandum is using "heightened scrutiny" the way you use "strict scrutiny," which is scrutiny that's limited to the basis of race.
The gender discrimination is, as you know, subject to what's called intermediate scrutiny. And that is not what the memo is referring to with respect to heightened scrutiny. It's referring to the strict scrutiny that's restricted to issues of race and ethnicity
BIDEN: I'll come back to that in the second round because that's not my reading of what you said.
But let me get on to another issue here, again in the sex discrimination area.
The attorney general for civil rights, a former Delawarean not viewed as a darling of the left, Bradford Reynolds, decided that the federal government should take action against the state of Kentucky. And they said that there's a very strong record that Kentucky prison system discriminates against female prisoners.
BIDEN: And I'm going to finish my whole question. And you wrote to the attorney general that "I recommend you do not approve intervention in this case." And then you set out three reasons why you shouldn't approve of it. Not that there wasn't discrimination.
You said, one, that private plaintiffs are already bringing suit; secondly, the United States argument would have been based upon giving higher scrutiny to claims of gender classification; and, thirdly, that we need to be concerned about tight prison budgets, you say.
And you go on to explain that if in fact you hold them to the same standard, they may get rid of the program for the men.
Now explain to me your thinking there. I mean, that seems to be...
ROBERTS: I'm sorry. What was the date of the memo, Senator? I don't...
BIDEN: The date of the memo was February 12, 1982. I'll give you a copy. I have to bring down a copy of the memo.
ROBERTS: I can't elaborate on -- I can't elaborate on what's -- beyond what's in the memo.
BIDEN: Well, I hope you don't still hold that view, man. I mean, if the idea that you're not going to -- that the -- that a conservative civil rights -- head of the Civil Rights Division in the Reagan administration says it is pretty clear Kentucky is discriminating against women in their prison system -- and you say, in effect, that may be, but, look, we shouldn't move on it, I recommend we don't do anything about this -- and the reason we shouldn't do anything about this is threefold.
One, a private citizen already went ahead and filed suit on this; number two, if in fact you go ahead and do this, they may do away with the system for the men because there tight budgets -- and I forget the third one. You now have the memo.
ROBERTS: I have the memo and see that one of the areas that you mentioned, I say that -- and this is to the attorney general, and I say the reason we shouldn't do this is because you have publicly opposed such approaches. So again, it would have been...
BIDEN: It was only his idea then? I mean, you were just protecting him so he wouldn't be inconsistent?
ROBERTS: I was a lawyer on his staff. According to this memorandum -- and again, I don't remember anything independently of this 23 years ago. But the memorandum suggests that to a staff lawyer to his boss that this is inconsistent with what you have said. Again, I guess I would regard that as good staff work rather than anything else.
BIDEN: I would regard it as very poor staff work, with all due respect, Judge, because it seems to me you insert your views very strongly in here.
You don't say you said this. You say, by the way, there are other reasons why we shouldn't do this.
Assume you're saying you wouldn't go this route before, "But I want to give you more ammunition here, Brad (ph)."
Private plaintiffs have done this. It's inconsistent with three themes in your judicial restraint effort, equal protection claim, relief of a well-involved judicial inference, et cetera. And by the way, the end result may be with tight budgets, they may do away with this.
My time is running out. I'll come back to this. I hope you get a chance to study it between now and the time we get back to the second round.
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