Wal-Mart v. Dukes: Corporate Interests Win Again

“Justice Roberts famously said this is about balls and strikes, well, the Roberts court is moving the pitching mound for plaintiffs down to second base, and out to center field.  Yes it’s balls and strikes, but [now] you have a much harder time getting the ball over the plate."  -- Attorney Cyrus Mehri, quoted by Adam Serwer

While it is generally agreed that business interests, as Justice Stephen Breyer said last year, "have always done pretty well" before the United States Supreme Court, the current conservative members of the Court have driven a marked ideological shift that favors corporations to a far greater degree.  This is reflected in their opinions when they are on the bench (see Corporate Takeover) and in their actions off the bench, most notably in the central roles played by Scalia, Alito and Thomas in major fundraising events for right wing, pro-corporate groups.  (If You Have Nothing Nice To Say; Just Politics; Activist Judges).

If we needed any more proof, we now have Wal-Mart v. Dukes, in which the Court blocked what the New York Times described as "the largest sex-discrimination lawsuit in U.S. history on Monday, siding with Wal-Mart and against up to 1.6 million female workers in a decision that makes it harder to mount large-scale bias claims against the nation's other huge companies, too."


Adam Serwer explains that a unanimous Court "agreed that, given the differing responsibilities and pay scales involved that the issue of back pay should have been dealt with under a different part of the law"  The more critical and far-reaching issue in which the Court split 5-4 along ideological lines, had to do with "whether the women could have proceeded as a class at all."  A Serwer explains, "the conservative majority essentially set a new higher standard for defining a class, and in doing so made it more difficult for class action lawsuits to be filed in the future."  This is, of course, so important because "class action suits are among the few tools for forcing changes in policy when the issue is systemic, rather than individual, discrimination, and without the class action option the women in the case will be forced to seek relief individually."

Marcia D. Greenberg, Co-President of the National Women's Law Center (NWLC), issued a statement that this "devastating decision undoing the rights of millions of women across the country to come together and hold their employers accountable for their discriminatory practices" has "set back efforts by a large group of women who have been fighting for ten years to challenge the discrimination they described in receiving lower pay and fewer promotions — even when the women had higher performance ratings than their male counterparts."  And beyond this case and these plaintiffs, the ruling "undermines the very purposes of the class action mechanism and is tantamount to closing the courthouse door on millions of women who cannot vindicate their rights one person at a time."

And so we turn to Congress.  Rep. Nancy Pelosi and some of the other House Democrats reacted strongly to the opinion and vowed to take action.  Indeed, as Greenberger states, "Congress must do all it can to ensure that this decision does not stand, including by passing the Paycheck Fairness Act. The women of Wal-Mart — and women everywhere — must have a real chance to gain equal pay and a fairer workplace."