The Supreme Court and Wal-Mart: Does diversity (of the Justices, that is) matter?

Employers across America can rejoice and thank the U.S. Supreme Court for its decision handed down last week in Wal-Mart Stores Inc. v. Dukes, signaling the end of a huge class action lawsuit brought on behalf of female employees alleging systemic sex discrimination. As reported by Tony Mauro for the National Law Journal (link here):

The Supreme Court on Monday handed a sweeping victory to Wal-Mart, the nation’s largest employer, in the company’s decade-long effort to thwart a discrimination class action filed on behalf of more than 1 million female current and former workers. The ruling is likely to hobble other large employment class actions as well.

Commentary about the decision, pro and con, already is voluminous. For three useful roundups, check out Workplace Prof, and Ohio Employer’s Law Blog.

Diversity matters

Law professor Melissa Hart of the University of Colorado writes (link here):

The most striking and disturbing thing about the Supreme Court’s decision in Wal-Mart Stores Inc. v. Dukes is the hostility evinced by the five-justice majority toward efforts of working women to address systemic workplace discrimination.

I agree and ask why this is so. Here’s my partial hypothesis: Members of the Supreme Court comprise one of the most homogeneous groups of people on the planet in terms of socioeconomic status and overall work and life experience. It is entirely fair to suggest that these factors played some role, however unconscious, in the decision.

Last year, the ABA Journal (membership magazine of the American Bar Association) featured two studies documenting powerful correlations between the race and sex of judges and the results of federal employment discrimination claims.  As reported by Edward Adams (link here), the studies formed the focus of a program at a major ABA meeting:

A judge’s race or gender makes for a dramatic difference in the outcome of cases they hear—at least for cases in which race and gender allegedly play a role in the conduct of the parties, according to two recent studies.

Racial harassment claims and race of judges

In federal racial harassment cases one study…found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American.

Sexual harassment & sex discrimination claims and sex of judges

…A second study…looked at 556 federal appellate cases involving allegations of sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The finding: plaintiffs were at least twice as likely to win if a female judge was on the appellate panel.

The current composition of the Supreme Court

Justices signing on to the key portion of the majority decision included Chief Justice John Roberts and Associate Justices Samuel Alito, Jr., Anthony Kennedy, Antonin Scalia, and Clarence Thomas.

Those who dissented in this portion of the decision were Associate Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

Hmm, see any gender pattern there?

Okay, from a social science research perspective, a sample of nine judges voting in one case lacks statistical significance to support a hypothesis. But do take a look at the bios of the Justices and check out their educational backgrounds, work histories, and who appointed them. (And by the way, when the bios refer to “private practice,” they usually refer to working at large corporate law firms representing powerful business interests.)

It should be clear that these individuals do not represent a cross-section of the American experience. This is not to say that any individual Justice is “unqualified” or improperly “biased” simply because of a resume. Rather, if we believe the most famous words of Justice Oliver Wendell Holmes, Jr. — “The life of the law has not been logic; it has been experience” — then it’s obvious that the life experiences of the Justices have been fairly narrow ones.


Law review articles

Go here for the 2009 Washington University Law Review article on racial harassment claims and race of judges, by professors Pat Chew and Robert Kelley.

Go here for the 2005 Yale Law Journal article on sexual harassment & sex discrimination claims and sex of judges, by then-law student, now practicing attorney Jennifer Peresie.

2 responses

  1. For some strange reason, this reminds me of something a feminist blogger (I can’t recall) once wrote: In a sexist world, a man with experience in something becomes an expert, but a woman with experience in something has “lost her objectivity.”

  2. So much for “Justice for All”. It is no wonder lawyers aren’t taking on cases of bullying or discrimination. What does that say to the targets?

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