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The Supremes, the Election, and the War on Women: What's Next?

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To say the Roberts Supreme Court hasn't been kind to women would be an understatement. In 2007, it overruled six lower federal courts in upholding a ban on one abortion procedure with no exception for the health of the woman. The same year the Court overturned 40 years of precedent when it severely curtailed a woman's right to sue for sex discrimination in pay. Just last year it piled on the punishment with the Walmart v. Dukes decision cutting the heart out of women's ability to sue as a class when they're unfairly denied pay and promotion.

So far, not so good. And when the Court reconvenes Oct. 1, women once more have a lot a stake. Cases already scheduled for hearing include affirmative action, the right to sue for sexual harassment at work , and gay marriage. The future of the Court and some fundamental rights for women could also be stake in the presidential race. To talk about these issues, I recently interviewed Linda Greenhouse, Supreme Court writer for The New York Times for my radio show Equal Time with Martha Burk.

MB: A prominent case this term is on affirmative action. Consideration of race in admissions at the University of Michigan was upheld in 2003, and now a case challenging the University of Texas plan which built on the Michigan case is being challenged. This is obviously important for women of color who sometimes face double discrimination.

LG: It's a multi-layered issue. When Sandra Day O'Connor wrote the 2003 majority opinion, she indicated that the Court hoped that affirmative action would be necessary only for another 25 years, and the Court was not going to get back into this issue for another quarter century. So the question is what is this case doing on the Supreme Court's docket? That was a discretionary act. I think it's because the conservative justices have this issue in their sights, and it's part of a project to get the government out of the business of counting people by race.

MB: What happens if the Supreme Court strikes the Texas plan down?

LG: It depends a whole lot on what they say. If they did the narrowest possible ruling, it would be limited to the details of what's going on in Texas. But certain parties have said to the Court, "Why don't you take this opportunity to just get rid of affirmative action? We don't want it anymore, we don't need it, it's unconstitutional." So if they do that, then it has widespread national implications.

MB: The Court has been asked to review two cases involving whether it's constitutional for the federal government to refuse to recognize same-sex marriage. Is the Court going to hear those?

LG: I'm virtually certain it will take one of the cases, because when a federal appeals court declares a federal law unconstitutional, it's the kind of thing the Supreme Court lives for. 2012-06-12-yourvoicesmallest2.JPGThe federal government stance has always been recognizing whoever is married by state laws. The question is whether there's going to be a carve-out for same-sex couples, or are these marriages going to be treated like any other marriage.

MB: Mitt Romney has said he's going to appoint justices in the mold of the ultraconservative Robert Bork [who failed to be confirmed by the Senate in 1987]. And of course the Republican platform has an anti-abortion plank with no exceptions.

LG: Romney has named Judge Bork to his judicial advisory. It's symbolic. It signals to the base that a Robert Bork type of individual is your man. We can expect [Romney] to play to the hard right in his judicial nominations.

MB: One thing the Court has done in the past that is good for women is legalize birth control. We've thought birth control was settled for a couple of generations, and now we're finding it's not. Could the Court conceivably revisit that issue?

LG: No -- that would be beyond my wildest imagination. It's just not conceivable that birth control would become illegal. Abortion is another issue. It wouldn't be beyond imagination for the Court to overturn Roe v. Wade.

MB: Women are now seemingly a permanent majority in the population. To reflect that, the Court ought to be five women and men. Will we ever have a majority female Court?

LG: Yes, sure -- it's happened on some state supreme courts.

MB: In terms of the Supreme Court, what is the most important thing people should be thinking about as they go to the polls?

LG: The Affordable Care Act case and decision upholding it as constitutional is something that people should remember as the benefits for their families are kicking in. It's a pretty darn dramatic example of why the Court matters.

Listen to the full interview here.