Scott 's column today on how Monday's decision in Walmart v. Dukes does a nice job of putting Scalia's opinion into historical perspective. An important exercise because, as he writes , "The idea that discrimination will rarely coexist with policies that are neutral on their face only makes sense if you ignore much of American history…" Not only does Scalia's opinion ignore American history, also flies in the face of accepted employment practices since the 1970s. Jooey Fishkin at Balkinization explains : Title VII helped spur both public and private employers to replace subjective, non-meritocratic systems of hiring and promotion with systems that were fairer, more uniform, and more merit-based. Today it is hard to imagine, for example, a big-city police department deciding simply to hire only the sons and nephews of incumbent officers. But at one time such practices were common. What changed was that corporate leaders, HR professionals, public sector managers, and the many, many...
