The Supreme Court and the Failure of Practical Thinking

Monday marked the second in a series of Supreme Court decisions that — even setting aside the legal points at issue — seem to completely abandon any notion of common sense. First, per Justice Scalia, the Court finally blocked plaintiffs’ class certification in a putative wage discrimination class action against discount giant and dubious corporate citizen Walmart. The reasoning is odd: because Walmart vests its managers with wide discretion, held Scalia, individual plaintiffs’ facts will necessarily lack the requisite commonality for a class action.

This is legally wrong. Justice Ginsburg notes the doctrinal error: aside from frontloading the class inquiry to invent a per serule against certification, it’s old law that “a system of delegated discretion . . . is a practice actionable under Title VII when it produces discriminatory outcomes.” Slip Op. at 11.

It will also have far-reaching consequences. Corporate defendants may fairly read the case to hold that, by stacking the appellate record with evidence suggesting that managers have wide discretion — and regardless of whether that discretion is actually used — they can entirely avoid class action employment litigation. And, for corporate defendants, neutering the class remedy effectively terminates the right. Individual employees generally lack the resources to sue in their own right, or to attract good lawyers. Going forward, classes will have to proceed on a store-by-store basis, or not at all, and in either case, Walmart can functionally evade wage discrimination law, because it has eliminated the most efficient, and maybe the only method of enforcement.

Maybe this was the intended consequence; if not, it’s hard to justify Scalia’s overreach. Either way, the Roberts Court has made a habit of ignoring the consequences of their actions. In Harrington v. Richter, a recent decision tightening the standard for habeas relief, Justice Kennedy held that a state court may, essentially, duck federal review by simply not issuing an explained decision. The obvious result is an incentive structure where state courts are rewarded for deciding tough cases unreasonably, so long as they don’t even try to explain the reasoning. The deck was already stacked against state prisoners hoping for federal relief; now they won’t even be dealt into the game.

Last election, I emphasized the importance of putting a Democrat back in the White House, to roll back the damage already done to federal law, and preserve that which remains. Three years later, it’s still a problem, and it’s still getting worse. We need a reasonable man (or woman) in Kennedy’s seat; we need a Democrat, again.


  1. Scalia went even further, saying of the managers that when given free reign, individuals will generally choose not to discriminate!

  2. Marlowe · ·

    We need a decent strategy from appointing federal judges. Even with a Democractic President, we can’t get anything done:

%d bloggers like this: