Everyday Cheap Justice

This week, the Supreme Court threw out a class-action lawsuit against retail giant Wal-Mart, which had been accused of systematically discriminating against women. As many commentators have noted, the Court's broad ruling will make it more difficult for victims of discrimination to file class-action suits -- and, as National Journal reports, probably spur more, and costlier, litigation.

What is striking about Antonin Scalia's opinion for the Court is its willful naïveté. It is difficult, first of all, to ignore the foolish assertion that "left to their own devices most managers in any corporation ... would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all." 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 and turn a blind eye to the fact that women and racial minorities continue to be underrepresented among business, political, and academic élites.

Scalia's reasoning would make it almost impossible to prove gender discrimination unless a corporation were stupid enough to put a discriminatory policy in writing. Scalia dismisses the "statistical and anecdotal evidence" offered by the plaintiffs as inadequate even though, as Justice Ruth-Bader Ginsburg's dissent explains, the statistics indeed show women are greatly underrepresented in management positions, and the anecdotes confirm that this systematic under-representation coexists with a significant amount of overt gender discrimination. So employees alleging discrimination face a Catch-22: Statistical evidence is insufficient because there might be an innocent explanation for the systemic disparities, yet anecdotal evidence of individual discrimination is rejected as being anomalous.

The twisted logic of Scalia's opinion has a long history. According to Edward Lazurus's Closed Chambers, in a memo circulated during the deliberations over the regrettable landmark death penalty case McCleskey v. Kemp, Scalia conceded that no amount of statistical evidence would be sufficient to prove the equal-protection clause of the Fourteenth Amendment had been violated. The Court's other conservatives agreed, holding that only evidence of individual discrimination would constitute an equal protection violation, while making it exceptionally difficult to prove such individual discrimination exists. Because of the necessity of focusing on individual cases and overt, intentional discrimination, short of an admission by a state official in open court, the Court has rejected discrimination claims even in situations where the evidence of discriminatory practices is compelling.

The problem with ignoring statistical evidence is that doing so produces far too many false negatives: Even in historical periods in which white and male supremacy were much more strongly entrenched and more overt, it has been relatively easy for various actors to find race-neutral pretexts for their actions.

On of the strongest examples of this is voting rights. The 15th Amendment forbids racial discrimination in election rules, and yet -- Scalia's beliefs notwithstanding -- African Americans were disenfranchised in most areas of the former Confederacy for nearly a century after its ratification. Two cases decided in 1876 demonstrate the effects of taking race-neutral policies at face value. In U.S. v. Reese, the Court permitted the use of literacy tests and poll taxes to prevent African Americans from voting because the policies were formally race-neutral, while in U.S v. Cruikshank, the Supreme Court was unable to see racial discrimination even in the systematic massacre of African-American voters. As a result, a combination of discriminatorily applied rules and state-sanctioned private violence suppressed the African-American vote for many decades.

Similarly, the Court was unwilling to uphold formal exclusions of African-Americans from jury service, but in a pattern that has repeated throughout Supreme Court history up to and including Dukes, decisions barring such discrimination were made irrelevant because the Supreme Court created standards that made discrimination nearly impossible to prove. In cases such as Thomas v. Texas (1909), the Supreme Court made it clear that no amount of systematic evidence was sufficient to show that discrimination was actually occurring. As a result, localities with large African-American populations could have nothing but all-white juries for decades without fearing an adverse constitutional ruling unless a state official was stupid enough to admit what was being done in open court.

The consequences of a willful blindness to discrimination -- unless it is formal and explicit -- will not, of course, have the same consequences in 2011 that it did in 1876 and 1909. But the results will be bad enough. Women and other disadvantaged groups will be subject to discrimination because the courts refuse to see it. A future Court should overrule Dukes. And in the meantime, Congress should act both to make it easier to form class actions and to remove the Catch-22s that Republican judges have used to make civil rights law so difficult to enforce.

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