By a 5-4 decision, the Supreme Court reversed the certification of a class action against Wal-Mart brought by women claiming to have been deprived of promotions and raises. The class of women affected numbered about a million and a half. The Supreme Court rejected the Plaintiff class’s theory that a culture of discrimination pervading Wal-Mart, and the discretion that individual managers were given over pay and promotions, worked together to keep women employees on the lower rungs of the ladder. The majority opinion denied that there was enough evidence to show that the company had a policy of discrimination; therefore, there was not enough commonality to allow the case to proceed as a single class of similar people. Justice Scalia held; “Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.”
While a decision in favor of Wal-Mart was expected, the majority opinion went out of its way to deride the statistical evidence that starkly showed the disparity between male and female advancement and pay. When a court hears an appeal, it is ordinarily supposed to decide the legal issue before it. Sometimes the legal issue is whether the judge below had enough evidence to rule in favor of one side. More often the legal issues focus on whether the jury was properly instructed on the law, or whether the wrong done to the plaintiff is something that a court can remedy.
Activist judges are often criticized for “legislating from the bench.” Instead of rendering a decision on the one issue before them, activist judges use a case as a stepping stone to announce new theories of law, when that announcement was unnecessary to the decision.
The current Supreme Court has certainly been engaging in activism as when, for example, it decided that corporations had free speech rights. In this Wal-Mart case, too, Justice Scalia attempts to undo long-standing discrimination proof standards. A well-known Supreme Court watcher noted the pro-corporate stance of the majority, indicating a possible constitutional right to a jury trial of each claim for damages. It is of course too early to know if the words will be adopted by courts when they are hearing cases not involving class action suits.