Roberts’s Quiet, But Critical, Votes To Limit Women’s Rights | Chapter 3
In the first two “snapshots” of our yearlong “Roberts at 10” project, we have focused on areas of the law in which Chief Justice Roberts has shaped the law not only through his vote, but also through his words. When it comes to federal power, campaign finance, and voting rights, Chief Justice Roberts has not hesitated to write important opinions, the long-term significance of which may lie not just in their holdings, but in their reasoning. In this third “snapshot,” we focus on John Roberts and women’s rights. In particular, we focus on the two areas of the law affecting women’s rights that have been the subject of the most cases during Roberts’s tenure on the Court—reproductive freedom and gender discrimination in the workplace. In these two areas, the Chief Justice has written relatively little, but he has often cast a critical fifth vote to limit reproductive freedom and support employers over their female employees. These areas of the law are obviously important in their own right, but they are also likely to be the focus of considerable attention this Term and next, with a major pregnancy discrimination case already on the Court’s current docket and the potential for significant abortion cases to be added in the near future.
Although these areas have not seen the same sort of rapid, radical change that we’ve seen in other areas of the law (such as campaign finance and voting), they have had their share of significant and high-profile decisions during the first nine years of Roberts’s tenure as Chief Justice. Indeed, one of the biggest cases last Term was Burwell v. Hobby Lobby, in which the Court, by a 5-4 vote (with Roberts in the majority), held that the Affordable Care Act’s contraception mandate violated the Religious Freedom Restoration Act. The decision prompted Justice Ginsburg to read a strong dissent from the bench and to subsequently accuse her male colleagues in the majority of having a “blind spot” when it came to issues affecting women. And one of the most controversial cases of Roberts’s earliest years on the Court was Ledbetter v. Goodyear Tire & Rubber Co., in which the Court, again in a 5-4 ruling with Roberts in the majority, held that a female plaintiff could not pursue her claim of pay discrimination under Title VII because she had waited too long to bring it. There, too, Justice Ginsburg had harsh words for the Court’s majority in a strongly-worded dissent that she read from the bench. Among other things, Justice Ginsburg suggested in her dissent that the Court’s decision was inconsistent with the “realities of wage discrimination” and the “real-world characteristics of pay discrimination.”