Dahlia Lithwick concisely explains something I was trying to get at in my post on Wal-Mart v. Dukes yesterday:
Scalia concludes that (even in advance of a lawsuit) the women could not show that Wal-Mart "operated under a general policy of discrimination." That's partly because "Wal-Mart's announced policy forbid sex discrimination" and partly because he rejects the plaintiffs' claim that Wal-Mart's "policy" of allowing discretion by local supervisors over employment matters constitutes a policy at all. As Scalia sees it, in giving local managers so much leeway in making personnel decisions, Wal-Mart actually established "a policy against having uniform employment practices." It's not Wal-Mart discriminating against women. It's just all these men doing it, and God knows men don't have unconscious biases and prejudices against women.
Scalia's argument flies in the face of common sense--as Scott Lemieux notes it's not as though the 15th Amendment prevented states from discriminating against black voters. Scalia's perspective fits neatly however, with the conservative view that accusations of bigotry are a far greater nuisance than actual bigotry, and that merely stating that one is not prejudiced should suffice to ignore evidence to the contrary in word and deed. In the context of Dukes, we might term this "anti-anti-sexism," and like "anti-anti-racism" it's informed by a perspective that finds it easier to imagine being accused of prejudice than being a victim of it. The only difference is that instead of being one side of a philosophical argument this idea is now enshrined in the law.
This argument has broader implications than just yesterday's ruling making class-action suits more difficult. It's not hard to imagine a similar argument coming up when the federal challenge to Arizona's draconian anti-immigrant SB 1070 bill comes up. SB-1070 contains similar anti-discriminatory language, something that functions mostly as a verbal alibi since everyone, particularly the bill's proponents, understand that it was meant to target undocumented immigrants of Latino descent. But as far as Scalia and the conservative majority on the court is concerned, including Justice Anthony Kennedy, all one need do to prove that you're not engaging in discrimination is to simply say that you aren't.
