The Significance of the Walmart Decision

A Facebook friend asked for input from lawyers about the Walmart v. Dukes opinion recently issued by the Supreme Court of the United States (SCOTUS). I'm still recovering from a series of 14 and 15 hour days as our state legislature rushed (for no apparent reason) to end the session by June 18. Except, it's not really ended, just on recess until July 13 (more on this topic on another day). My response to his inquiry is below. Nothing fancy. My brain is muffled in cotton.

There were two major questions for SCOTUS to address in this case.

First Question: I concur that the 9-0 vote on the procedural question, certifying the plaintiffs as a class, is not an issue. The group was far too large and lacking in commonality to certify as a class. The proposed class was too broad; it would have included every female Wal-Mart employee since late 1998, and it's a stretch to assume that they were all victims of gender bias.

Second Question: However, SCOTUS split 5-4 on the question of sending the case back to the trial court to determine whether it could proceed in a narrower form. Justice Ruth Bader Ginsburg, a member of the minority on the latter question, warned that the Wal-Mart ruling would leave legitimate bias cases “at the starting gate.” Ginsburg, Sotomayor, Breyer, and Kagan all dissented from the majority on this second question. Ginsburg wrote the dissent.

Justice Scalia, who wrote the majority opinion, significantly restricts the rules defined by Congress for class-action lawsuits. Scalia argued that plaintiffs can gain a court’s certification of a class to pursue job-discrimination claims only if they can show “some glue holding the alleged reasons for all these decisions together.”

In other words, they must show that they are likely to win their case, to meet the “glue” test, a term that Scalia leaves undefined. What does it mean? How will it be determined that the "glue" test has been met? It appears that alleged victims of discrimination will, in the future, have to meet this test before they even will be allowed to certify as a class. It appears from the opinion that if discrimination is alleged in a wide enough variety of employment categories and locations, the plaintiffs cannot make a showing of commonality,without such a showing, they can't be certified as a class.

The other legal analyses of this case that I've read conclude that such a standard makes the cost and difficulty of bringing a class-action suit virtually prohibitive. So the Wal-Mart employees who want to continue to pursue their case will have to sue the company individually, if they can afford to do so. Or they can give up. This is what all the concern is about, not the decision that there were too many members and not enough commonality to certify them as a class.

In my legal opinion, the Supreme Court has increased the difficulty of seeking redress for illegal discrimination by employers through the use of class action lawsuits.

The entire opinion, including the dissenting opinion on the second question may be found at: Walmart v. Dukes.

The Constitution comes to Chicago

"Liberal anti-gun groups are already fuming" says Raw Story's report of the Supreme Court's decision that the Second Amendment constitutes a restraint on State and local government's ability to abridge the right to keep and bear arms.

"People will die because of this decision" says Washington, DC's Violence Policy Center, but the question is really about how many died because of the blanket ban on hand gun ownership, isn't it? Perhaps since suicide is the leading cause of handgun death, some will choose Beretta over barbiturates or the window or driving the wrong way on the expressway.

"It is a victory only for the gun lobby and America's fading firearms industry. The inevitable tide of frivolous pro-gun litigation destined to follow will force cities, counties, and states to expend scarce resources to defend longstanding, effective public safety laws. The gun lobby and gunmakers are seeking nothing less than the complete dismantling of our nation’s gun laws in a cynical effort to try and stem the long-term drop in gun ownership and save the dwindling gun industry."

I don't know about the authoritarians we keep insisting on calling "liberals," but I'm starting to give off some steam here myself. If there is in fact a long term drop in gun ownership, it's a surprise to me, seeing as there are lines outside of gun shops and sales of guns and ammunition are booming. Prices of ammunition are soaring. If the domestic arms industry is suffering, the lawsuits by cities like Chicago are certainly part of it and the ability of foreign makers to sell more cheaply has hurt every American industry.

If these long standing blanket handgun bans have made the few cities that enacted them safer, it's never shown up in any statistics that I've seen. In fact as gun laws have liberalized nationwide, gun related crimes have decreased.

Yes, I've seen the posters, heard the slogans, listened to the blather: show me the numbers. I suggest that just as there was a lot of sound and fury and learned diatribes about the bloodbath that would follow the demise of the National Speed Limit, the facts contradicted that idiot's tale quickly and continue to do so. Facts however, are the enemy of zealots; whether they're anti scary-thing activists or the profiteers who perpetuate the War on Drugs that never worked and which has been responsible for the majority of violent murders.

Show me the effectiveness of the Chicago or Washington DC handgun bans. Show me that these cities have been any safer than cities without them. Tell me I'm part of a gun lobby, tell me I'm trying to dismantle gun laws -- it may convince the choir you preach to, but you certainly are stretching the truth with the intent to deceive. Nothing less than dismantling all gun laws? Hell no, I don't want minors to own guns. I don't want to remove most of the restrictions on where you can carry them, where you can display them openly how you can transport them and certainly not on where and when you can use them. Call me cynical, but in the years since you told me someone was going to "shoot the Avon Lady " if we allowed someone to shoot an armed home invader, invasions have decreased and the Avon lady is still alive and well. It's all been a pack of lies you told to generate revenue and get votes -- and sorry, if you're attacking my freedom, you're sure as hell not a Liberal and if you disagree, you don't speak English very well either. Call me cynical, but it's you willing to ignore the constitution for your own ends, not me.

" We know the facts prove the opposite and that areas of the country with the highest concentration of gun ownership also have the highest rates of gun death"

34,000 gun deaths? What about the fact that 83% of the gun deaths in households containing guns are suicides. Why aren't you mentioning that most of the 'people who will die' if Chicagoans can keep a gun at home are just as likely to have died otherwise. Why is that a danger to me or you? Perhaps the incomplete facts support the argument, but the complete facts suggest that banning rope or prescription pain killers or alcohol or windows that open or razor blades will be as stupid an exercise and of course none of those can protect your life, now can they?

Since the handgun ban never had any effect on the gangsters who use handguns in crimes, except to make burglars a bit bolder, restoration of rights to home defense just isn't going to create that bloodbath, but proof of failure has always been seen as evidence for success and a demand for continuation of policy by authoritarians.

DUNCE SCOTUS

It seems the wife of Supreme Court Justice Clarence Thomas has started her own Tea Party PAC, according to this report in the Los Angeles Times:

"I am an ordinary citizen from Omaha, Neb., who just may have the chance to preserve liberty along with you and other people like you," she said at a recent panel discussion with tea party leaders in Washington. Thomas went on to count herself among those energized into action by President Obama's "hard-left agenda."

But Thomas is no ordinary activist.

She is the wife of Supreme Court Justice Clarence Thomas, and she has launched a tea-party-linked group that could test the traditional notions of political impartiality for the court.

In January, Virginia Thomas created Liberty Central Inc., a nonprofit lobbying group whose website will organize activism around a set of conservative "core principles," she said.

The group plans to issue score cards for Congress members and be involved in the November election, although Thomas would not specify how. She said it would accept donations from various sources -- including corporations -- as allowed under campaign finance rules recently loosened by the Supreme Court.

Read the rest of the story here.