Another Day at the Races

By now, we have grown accustomed to a US Supreme Court that rules in favor of the corporate interest, no matter what its costs might entail with regard to democratic practices. Corporations are now “individuals,” and money is “speech.” Just so, the loudest mouth among us now is the one with the longest purse. For five of our robed friends, so much for the “people” and their aspirations.  We know them, of course: Chief Justice John Roberts and the high court’s conservative cohort, Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito; once upon a time, we’d entertained the possibility that Associate Justice Anthony Kennedy might become the court’s new Sandra Day O’Connor, mediating between the conservatives and the court’s more moderate branch—Associate Justices Ruth Bader Ginsburg, Stephen Bryer, Sonia Sotomayor, and Elena Kagan—but  it appears now that our vision of Kennedy as the “swing” vote might not materialize either. For all we know, then, about this current configuration of Supreme Court justices, we nevertheless deplore the June 20 ruling in the Wal-Mart case that turned back a million and a half female employees of the retail giant and disappointed millions more of us who wished to see them victorious.

According to The New York Times, Wal-Mart is the country’s largest private employer, operating some 3,400 outlets across the United States. The plaintiffs in Wal-Mart v. Dukes, No. 10-277 were led by Betty Dukes, who was employed by Wal-Mart as the “greeter” at the Pittsburgh, California store. An ordained black minister of the Baptist Church, Ms. Dukes initiated her suit a decade ago in what some critics of the retailer have called “Betty vs. Goliath.”

Starting at Wal-Mart in 1994, Dukes filed suit against her employer on the basis of the 1964 Civil Rights Act, which prohibits discrimination on the grounds of race, gender, and creed. In May, 2010, the 9^th Circuit US Court of Appeals upheld a lower court decision that permitted the case to proceed as a class action suit on behalf of a million current and former female employees of Wal-Mart. The past Monday, the Supreme Court held, in effect, that the class was too large.

For an audience of judicial laymen (where most of us non-jurists and not-lawyers reside), Monday’s ruling is fairly complex, insofar as it is split across two main faultlines of argument: 1) the technical grounds upon which the case was filed and 2) the ideological import of the decision.  Regarding the former, the court unanimously ruled that the lawyers for the plaintiffs “had improperly sued under a part of the class action rules that was not primarily concerned with monetary claims.”  All the justices apparently agreed that the lower courts had erred in the first place by certifying the class, based on the complaint of four female employees, alleging discrimination at Wal-Mart stores across the entire nation. In other words, the grounds of the suit were adjudged too broad by all nine justices. But the crux of the matter rests in the second part of the decision where the court split along the by-now traditional ideological lines, 5-4: Associate Justice Ginsburg, writing for the minority, would have sent the case back to the lower courts, allowing the plaintiffs “to try to make their case under another part of the class action rules,” or on a narrower basis. Contrarily, the court’s majority “disqualifies the class at the starting gate.”  Whereas the minority opinion would allow class action as a strategy of legal remedy, but on different grounds from that proposed by the Wal-Mart plaintiffs, the majority would not countenance class action as legal remedy, period.

Writing for the majority, Justice Scalia asserted the legal principle that is likely to prevail, unfortunately, in class action suits henceforth. In fact, in the general view of the legal community, as far as I can tell, class action litigation is at an end. Because the burden of proof now handed to a plaintiff is so stringent, it is unlikely that he or she will be able to meet it. Scalia reasoned that the Wal-Mart plaintiffs could demonstrate no “common answer to the crucial question, why was I disfavored?” Wal-Mart is said to have a non-discriminatory policy nationwide (as we might note that non-discrimination is the usual theoretical posture of business establishments in the United States today and that it is ridiculous to imagine in our time that a business would assert otherwise), but the retailer also proffers “substantial discretion” to local management. “On its face,” the justice goes on, “that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action.” That the plaintiffs were women, alleging, therefore, gender discrimination in wage equity and opportunities for advancement and promotion was insufficient to Scalia’s mind to adduce “significant proof” that Wal-Mart pursued a “general policy of discrimination.”

Not impressed either by the anecdotal or statistical evidence brought forward by the plaintiffs, Scalia thought that the stories— among the charges, women employees yelled at more than male employees; some women told to take the “cob webs off their make-up” and “doll up” as a way to promotion, etc.—were “scattered,” “about 1 for every 12,500 class members.” As a result, the anecdotal archive was deemed “insignificant.” The import of pay and promotions gaps was dismissed as well, since gender discrimination, Scalia contended, might not have been the only reason explaining it. The character, then, of “performance-based criteria,” held to be gender-neutral, would differ from individual to individual, store to store, state to state, and region to region; consequently, the plaintiffs in this case, according to Scalia, could evoke no nationwide practice of difference on the Wal-Mart employment scene that would speak across the particular instance of each of one million and a half women.

Viewing matters as if from a different planet, Justice Ginsburg concluded that the statistics presented by the Wal-Mart plaintiffs, as well as their individual stories, all suggested that “gender bias suffused Wal-Mart’s corporate culture.” Senior management, Ginsburg pointed out, often referred to female associates as “ ‘little Janie Qs.” Does the public wonder, then, that the lopsided percentage of management positions—only 33 percent of them occupied by female employees over and against 70 percent of female employees in hourly-wage jobs—would yield “disparate effects”? Wal-Mart’s practice of delegating to supervisors considerable leeway in making personnel decisions, “uncontrolled by formal standards,” seems to any fair mind substantial occasion for the exercise of whimsy, if not outright unjust treatment. By these lights, Scalia’s reasoning appears specious, inasmuch as the female employees husbanded considerable evidence that challenged Wal-Mart’s purported claims of anti-discrimination, which, in satisfying the requirements of public relations, could not answer the demands of everyday praxis in ways that would invite thousands of subjects to take refuge in the retailer’s self-presentation. Moreover, Wal-Mart managers, “like all humankind,” Ginsburg argued, “may be prey to biases of which they are unaware.”

Needless to say, the plaintiffs, although they vow to continue pressing their case by filing individual charges, or breaking up the suit into smaller units as legal strategies pursued by their lawyers, have sustained nonetheless an enormous blow. But let there be no doubt that in Wal-Mart Stores v. Dukes, this Supreme Court has struck at the very heart of every gain in civil and human rights that decades of struggle achieved a half century ago in moving the nation closer to equality before the law and the evenhanded distribution of constitutional belonging and protection. The progressive dismantling of such possibility, starting with this Court and racial remedy, is enough to condemn Monday’s ruling, but alongside it goes the triumphalism of an unscrupulous corporate synthesis that preys like a vulture on the collective dreams and aspirations of millions of ordinary Americans, an inordinate number of them women. Corporate rule has a name, and it is unspeakable.