Tony Scalia, in yesterday’s Wal-Mart ruling:
“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”
The case involved “literally millions of employment decisions,” Justice Scalia wrote, and the plaintiffs were required to point to “some glue holding the alleged reasons for all those decisions together.”
I don’t see how anyone can get a class certified in a discrimination case against a large company, if this kind of logic is applied to those cases. All the company needs to do is to delegate policy-making authority far enough down into its organization, and there’s no way that a lawsuit can proceed. It doesn’t matter if this delegation of authority generally results in discrimination. As long as those at the top state that it isn’t their policy to discriminate, they don’t have any responsibility for widespread discrimination, since it results from actions of managers making independent decisions. This sounds like basic “hear no evil, see no evil” reasoning in practice.
We’ll never know if Wal-Mart’s leadership knew about patterns of discrimination, and whether they tried to counteract it, because the usual 5-4 suspects won’t even let this case come to court. I’m sure every other corporation is studying what Wal-Mart did to dodge this bullet, and they’re working overtime to replicate this American success story.
Update: It’s a little confusing, but the critical part of this case was a 5-4 ruling. Dalia Lithwick:
Don’t be distracted by the fact that the court decided part of the case unanimously. The nine justices were in agreement regarding only the important, but technical question of whether the request for back pay was improper under a provision that normally provides only injunctive relief. The red meat of the Wal-Mart decision lies in the fight between Scalia and Justice Ruth Bader Ginsburg over a much more fundamental question: Was there a single question of law or fact common to all the women in the suit? The federal district court and 9th Circuit believed that there was. The five justices in the majority disagreed.
sb
Agree with every word. What boggles my mind is why I kept reading that this was a unanimous decision. Was I the only one who saw the word unanimous again and again yesterday? Now, I’m seeing 5-4 with the usual suspects.
Malaclypse
because the usual 5-4 suspects won’t even let this case come to court.
Except this was 9-0, not 5-4.
Thomas
This court has become so blatantly pro-corporate, anti-individual its becoming almost funny. At this point you have to wonder if it’s even possible to devise a fact pattern in which they would decide in favor of the individuals/non-corporate interest.
kdaug
Oh, come on. Haven’t you heard? It was on the TV all day yesterday.
All these women are still completely free to individually take on WalMart.
What could be wrong with that?
Don’t go all mushy on us mistermix.
DecidedFenceSitter
Regarding 9-0 versus 5-4:
From my quick scan, it looks like the main 5 – said “Screw you this can’t proceed”; while the latter 4 say, “The lower court certified as a class action improperly; however, this is still valid because of these other reasons.”
Comrade Javamanphil
@Thomas I think the corporatist sympathies of the court are just a symptom. In fact, if you place this case in the larger context of conservative ideology you see the regular and repeating pattern of pushing all the responsibility for bad acts down to the lowest level of the social pyramid (ACORN, Abu Ghraib, etc…) while absolving our social betters of any responsibility. It’s aristocracy without the titles.
nancydarling
Part of the decision was unanimous and part was 5-4. Would any attorneys out there parse this decision for me and explain just how Ginsburg, Sotomayor, Kagan and Breyer dissented?
chopper
i would figure if there was evidence as to that, it would have been brought forth as the ‘glue’ scalia was stating was missing from the record.
then again, tony and the boys would probably not consider mere knowledge of discrimination and a lack of reaction to be enough.
JPL
Several states have passed laws restricting the right of Abortion and those laws have not been challenged. I think we know why.
lol
Is the Professional Left still tired of hearing about Lily Ledbetter or do they need someone to connect the dots?
mistermix
I updated the post with a link to Dalia Lithwick’s discussion to explain the unanimous vs 5-4 parts of the decision. Her whole post is worth a read, as usual.
lol
But *I* want to whine *now*!
Both sides are *exactly* the *same*!
amk
Naked capitalism at its best. Corporations are people too. We can’t hurt them. God bless amurika. Indeed.
OzoneR
No, the decision was whether or not to let the case proceed, that was 5-4.
nancydarling
Thanks for the Lithwick link, mistermix. I don’t have tv, and it seems almost everything I have read or heard on the web are reporting this as unanimous with very little reference to the dissent—lazy fuckers!
someguy
Essentially, the three plaintiffs alleged that pay and promotion is left in the hands of local walmart managers. The class seeking certification would include ~1.5 million women working at all the stores.
Scalia and the 4 right wingers don’t see the overall corporation as being responsible for what its local managers do. Ginsburg and the centrists feel that it’s corporate responsibility to have a pay & promotions policy in place, and that all the women in the class suffered as a result of the corporation not doing something about this problem.
For my part I think it’s a shame they didn’t certify the class. With a little luck the money damages (unfortunately unanimously rejected) could have driven Walmart out of business, to the relief of downtown areas everywhere.
norbizness
Then-Solicitor General Rehnquist once defined a strict constructionist (when vetting Nixon’s early court appointments) as somebody who voted reliably against criminal defendants and civil plaintiffs (where the plaintiffs were individuals suing corporations).
So when I see somebody trying to figure out Scalia’s opinions, as if they had some sort of common jurisprudential model behind them, I have to chuckle a little bit.
John Puma
Are these newly identified lowest-level corporate manager predators that same as the mortgage borrower predators that caused our economic troubles?
Bullsmith
Steal from the boss, it’s a crime. Boss steals from you, it’s good business.
Phil Perspective
lol @ 12:
They are for the most part. They both take you to hell. One just takes the interstate, the other takes the two-lane country road. Where do you think those Democratic “SuperPAC’s” that Feingold railed at this past weekend will get their money from? And do you think that money comes with out conditions, albeit unsaid?
lol
@20: If 8 years of President Just-The-Same-As-Gore hasn’t disabused you of the notion, you’re too stupid to live. Go die in a fire, dumbass.
Commenting at Balloon Juice since 1937
I work for a company that did not have a uniform standard for managers. Now, after losing several law suits, everyone gets annual training.
The Republic of Stupidity
A
Hmmm… in other words…
Protect the highest levels of the organization… by isolating them from the consequences of their own behavior… am I reading this right?
I believe that’s how the Mafia has operated for centuries…
Jonny Scrum-half
someguy @16 — The decision has nothing to do with whether the conservative justices “see the overall corporation as being responsible for what its local managers do.” As a matter of law, the corporation is responsible for its managers’ acts of discrimination, so that’s not an issue.
The question was whether there was sufficient “commonality” between the alleged acts of discrimination that would warrant use of a nationwide class action. That would have allowed the class members to rely on evidence of discrimination against only certain representative class members, and wouldn’t have required that each plaintiff prove discrimination.
I haven’t read the decision — either the majority or the dissent — but it definitely doesn’t close the door to individual lawsuits alleging discrimination. It probably doesn’t foreclose smaller class actions, which might allege that an individual store or region had a common practice to discriminate.
Walker
Personally, I think Janus Capital Group, Inc. v. First Derivative Traders is worse than this. They have essentially made it impossible to sue the investment banks for fraud.
eemom
As I said yesterday, the plaintiffs’ lawyers screwed over their clients, and all class action plaintiffs, by defining the class as broadly as they did. Any class action lawyer would tell you that a class that large and diverse has no chance of being upheld.
If they were trying to serve the interests of their clients instead of making a big name for themselves by taking this high profile case to the S Ct and losing, they would have proceeded with a number of smaller, more narrowly defined classes.
The class action procedure is a great device for achieving justice for the many, but it is not without limits, and not all those limits are evil. Some are actually necessary to protect the due process rights of absent class members, and to make class-wide litigation, you know, feasible.
mcd410x
@eemom: This.
@lol: Get away from the computer and go outside. It’s probably nice out. Relax. You’re overheating.
burnspbesq
@Johnny Scrum-Hal:
“It probably doesn’t foreclose smaller class actions, which might allege that an individual store or region had a common practice to discriminate.”
Change “probably” to “also.” That’s the way forward in employment discrimination cases. Although it is not unreasonable to wonder whether the kinds of lawyers who do this kind of work will be as interested in representing a class of 25 employees of a single store. There isn’t much likelihood of a big fee award in a small case.
What’s going to be interesting is whether this ruling affects securities fraud class actions.
Judas Escargot
I interpreted this as the entire point of the ruling: Can’t have the canaille clogging up the courts with their petty little grievances.
If they hate Walmart so much, they can always take their business elsewhere.
Paul in KY
A craven decision from a craven court (at least 5 them, anyway).
This is why it is so important for Pres. Obama to get that second term. Scalia is big & fat & could stroke out in next 4 years. Getting to replace him (by Pres. Obama) is essential in restoring sanity/honour to the Supreme Court.
negative 1
someofparts
Glanced through the thread and didn’t see this posted.
http://www.dailykos.com/story/2011/06/20/987073/-Wal-Mart-will-be-so-sorry-it-won-today?via=siderec
From Kos this morning.
maya
No doubt the fascist five on the present SCOTUS would have ruled in favor of plaintiff in East India Company vs Boston Tea-Party Patriots for full restorative damages to its salted tea and triple trademark violation damages for defendants impersonating Indians in the process.
someofparts
Also, where are the t-shirts with head of the corrupt members of the Supremes pasted onto the bodies of kangaroos? (Just watched Lord of War again and still laughing about the scene where some African warlord refers to the American “court of kangaroos”.)
Doug
For what it’s worth, minority wouldn’t have necessarily let the case proceed as a class – they would have remanded it to the district court to determine whether class certification under a different provision of the trial rules was appropriate.
The majority said, as a matter of law, the Plaintiffs claims didn’t reach that other trial rule provision because there wasn’t a showing of commonality for the employment decisions made with respect to the 1.5 million people the Plaintiffs wanted to stick in the same class.
Class actions against individual stores or even against regions is still possible. I’m inclined to dislike decisions coming out of this majority, but in this case, I agree with them. The Plaintiffs went for too big a class, and, with that big a class, with that many different fact patterns, your dealing with too many variables to allow the litigation process to function properly.
Herbal Infusion Bagger
” Getting to replace him (by Pres. Obama) is essential in restoring sanity/honour to the Supreme Court.”
Yeah, but the teahadists prevented Peter F**cking Diamond from being elevated to the Fed Board, because winning a Nobel in the economics of unemployment means you’re unsuitable for the Fed Board, but a A Bachelor’s Degree in Fine Arts is just peachy.
Even if Obama nominated the Undead Zombie Corpse of William Renquist, some asshole southern senator would object.