The Court, Below the Radar

Next week, the Supreme Court will hear oral arguments in Wal-Mart v. Dukes, a class-action lawsuit in which more than 100 female plaintiffs have accused the retail giant of gender discrimination. But the justices won't address the particular claims against Wal-Mart. Instead, the Court will consider the technical question of whether women who have been discriminated against can sue together as a class or whether they must pursue claims against Wal-Mart individually. The case's narrow focus belies how important the outcome will be for women's rights.

The Supreme Court cases that attract the most public attention tend to be cases in which the Court exercises, or declines to exercise, its power to declare state or federal laws unconstitutional. Most of the cases that have defined the recent Court -- Citizens United, in which the justices struck down down campaign-finance legislation; Parents Involved, in which it ruled voluntary-desegregation programs illegal; and Heller, in which the Court found that the Second Amendment entails an individual right to bear arms -- involve judicial review.

But in the modern regulatory state, whether a law is upheld or struck down is often not the most important question. No Supreme Court justice has ever held the controversial 1964 Civil Rights Act unconstitutional. But how the courts interpret its provisions has mattered a great deal. For example, in what dissenter John Paul Stevens called a "sojourn into judicial activism," a bare majority of the Court in a 1989 case, Wards Cove Packing v. Atonio, turned a "blind eye to the meaning and purpose of Title VII," the provision that outlaws race-based employment discrimination, and made it much easier for employers to discriminate against employees based on their race.

In theory, Congress can override judicial interpretations of statutes. It did this in 2009, when it passed a law explicitly overruling the Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. -- the justices had ruled that the statute of limitations for suing based on payment discrimination started when the payment was agreed upon, not the date of the last paycheck. But Congress stepping in to "clarify" a law is the exception rather than the rule. In most cases, the difficulty of getting a House majority, a Senate supermajority, and the president's signature to overrule the courts means judicial interpretations are the last word.

Another way in which the courts play a major role is in enforcement. Given the limits on government resources, our regulatory system often leaves the enforcement of regulations up to individual lawsuits; litigants sue, and the judicial system decides the appropriate remedy. In this arena, the Supreme Court has in recent years made it more difficult for litigants -- at least litigants advancing clams the Court substantively disfavors -- to get the necessary "standing" to bring lawsuits that would enforce federal statues.

The case brought by the Wal-Mart employees presents extensive evidence of the type of gender discrimination that Title VII of the Civil Rights Act was intended to prohibit. Statistical evidence shows that women who worked at Wal-Mart received less pay than male counterparts for the same work, and is buttressed by accounts of egregiously sexist behavior by supervisors. One supervisor informed a female employee that "men are here to make a career and women aren't. Retail is for housewives who just need to earn extra money" -- an example that, among the case evidence, is all too representative. The suit documents a dismaying number of incidents in which managers denied women managerial positions based on anachronistic beliefs about gender roles.

Given the compelling stories these individual women can tell, does it matter whether they can file suit collectively? Absolutely, for at least two reasons. First of all, only a class-action suit can properly create a record of the systematic gender discrimination at Wal-Mart. Any individual case can be dismissed as an anomaly or a misunderstanding, but the volume of complaints makes clear that gender discrimination was embedded deeply within the culture of the corporation, a very relevant fact for a discrimination suit.

The second reason is practical. Rights litigation is expensive, and judgments are not likely to be high even if the suit is successful. That's especially true in employer suits in which employees weren't well paid. The ability of "similarly situated individuals" -- the general standard for bringing a class-action suit -- to file collectively makes it more likely that they will be able to obtain good legal counsel and have the evidence-gathering capacity they need to afford them a fair hearing. Isolated individuals are also more likely to be intimidated or harassed into dropping legal claims. Forcing all civil-rights claims to be litigated on a piecemeal basis can turn civil-rights protections into an empty formality.

Because the Supreme Court is looking at the class-action issue, there is some skepticism about whether this suit will be allowed to proceed. Wal-Mart, notes Lisa McElroy, is arguing that "the class is too large," because the hundreds of thousands of employees likely to be included in the class cannot have similar enough claims. The unusually large size of the class, however, is a logical response to the mammoth size of the retailer. Wal-Mart's large size actually exacerbates problems employees who are discriminated against often have in collecting information and inhibiting retaliation -- exactly the problems class actions are designed to address.

So while the question being addressed by the Supreme Court may seem like an arcane legal dispute, the case matters a great deal to victims of discrimination. American women don't merely need protections on the books but on the ground. Just as in politics, fighting discrimination in the courts is better done through collective action rather than by isolated individuals.

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