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It’s Only Illegal to be Stupid; Gender Discrimination is Fine

[ 81 ] June 21, 2011 |

Lithwick’s article about Wal-Mart v. Dukes should be read in its entirety, but the most important passage identifies the key part of Scalia’s majority opinion:

The law allows such “pattern and practice” evidence to be used to prove sex discrimination, even when a company has a formal policy forbidding sexual discrimination. After all, every company has a formal policy forbidding sexual discrimination and few affirmatively encourage it in writing. Scalia is unmoved, however. He asserts that “left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion.” [Right. And African-Americans had the unfettered right to vote as soon as the 15th Amendment passed. --ed.] The women of Wal-Mart can’t show that managers exercised discretion in similarly gender-biased ways, he writes, and scoffs at attempts to do so through “statistical and anecdotal evidence.”

But, of course, if you can’t use statistical and anecdotal evidence to prove gender discrimination — and, as he apparently admitted about racial discrimination and the death penalty during the deliberations in McKleskey v. Kemp, it’s clear there’s no amount of statistical and anecdotal evidence that would convince Scalia — then there really isn’t a law against gender discrimination at all. There’s just a law against having your company being run by complete idiots. Any amount of gender (or, presumably, racial) discrimination is acceptable to the Court’s Republican appointees as long as you’re not dumb enough to actually explicitly state it as a formal policy.

Comments (81)

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  1. He asserts that “left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion.”

    So if a manager chooses the “gender-neutral” criteria of rejecting candidates he thinks are pushy and always challenging his authority, and when looking at the pool of applicants, he finds – for some reason – that all of the management-caliber women candidates just happen to be pushy and insufficiently subordinate to his authority, while the male candidates come across to him as being jocular team players, then he hasn’t exercised any gender discrimination.

    • David M. Nieporent says:

      He might have. But that doesn’t mean one can aggregate his store’s numbers with those of a different store with a different manager two states away from his and claim the women who work in that other store are victims of discrimination by the parent company.

  2. Glenn says:

    Although I have little interest in begin fair to Scalia, saying that his view eviscerates discrimination law completely is a bit overwrought, isn’t it? Nothing in Scalia’s opinion questions the ability to challenge individual employment actions as discriminatory. It obviously creates a nearly-insurmountable hurdle to company-wide policies and practices, however.

    • Absent an explicit confession, how would the discriminating manager in my first comment be shown to have discriminated, if we accept Scalia’s assertion that statistics can’t be used?

      • Glenn says:

        First, you know, most discrimination cases don’t involve statistical proof. They involve evidence as to why the company says it took the action it did and whether that’s believable. Often they involve evidence of statements by the manager suggesting bias, or evidence of similar actions with respect to other employees that suggest bias.

        In the case you describe, if an otherwise qualified woman were rejected for promotion in favor of a man — particularly a man who seemed less qualified, or had lower seniority — that would be sufficient evidence to require the employer to articulate the reason for its actions. And if it turned out, as you posit, that the same manager had done the same thing for several promotions, always calling the women candidates “pushy” or other arguable sexual stereotypes, that would be perfectly admissible evidence to try to persuade the jury that the given reason for the failure to promote was pretextual. That doesn’t require “statistical” analysis, and nothing in Scalia’s opinion calls that evidence into question. And jurors aren’t stupid.

        • Scott Lemieux says:

          BUt making it nearly impossible to prove company-wide discrimination also makes it much more difficult to prove individual discrimination (again, unless company officials are dumb enough to be explicit.)

          • Glenn says:

            That may be so (although I’m not sure it follows as clearly as you think it does), but I was reacting to your claim that under Scalia’s view of statistical evidence, “then there really isn’t a law against gender discrimination at all.” Yeah, I know, rhetorical license and all that. But while I think it’s important to criticize this decision, I also don’t think it’s valuable to overstate its holdings.

            • L2P says:

              Are you a child?

              Yes, technically you can file a few cases. But without statistical proof of discrimination, you have “he said, she said” cases. You’re slinging pots filled with mud at each other. Those are lovely. You end up with lottery cases; sometimes the plaintiff wins big, sometimes you get a nuisance settlement, mostly you get a ruined career.

              If that’s what you have left with gender discrimination, there’s nothing left. This isn’t like racial discrimination where just a whiff can get you a settlement and there’s no downside. Gender discrimination cases suck ass. The only defendant left is the government.

              I know this site is littered with people who never practiced, but you might as well right Scalia’s next opinion

        • actor212 says:

          First, you know, most discrimination cases don’t involve statistical proof.

          Even class action cases? The issue as I understand it was the standing of the class.

        • And if it turned out, as you posit, that the same manager had done the same thing for several promotions,

          But Scalia rules out looking at such a pattern:

          The women of Wal-Mart can’t show that managers exercised discretion in similarly gender-biased ways, he writes, and scoffs at attempts to do so through “statistical and anecdotal evidence.”

          always calling the women candidates “pushy” or other arguable sexual stereotypes

          And there’s the problem. All he needs to do is not call anyone anything, and talk up the fitness of the all-male candidates he hired.

          • Glenn says:

            I’m sorry, but there is absolutely nothing in Scalia’s opinion that suggests you could not, in an individual case, use such evidence. This case was about challenging a company-wide practice or policy.

            • Yes, Scalia issued a ruling on the case in front of him – a company-wide, class-action lawsuit with many women. And he ruled out looking at actions in the aggregate in a case involving the company’s actions in the aggregate.

              To conclude from this that he is therefore not ruling out using such aggregate data in individual cases makes no sense at all.

            • MobiusKlein says:

              So neither statistical evidence or anecdotal evidence can be used. What is left if you want to show company wide discrimination?

              • Warren Terra says:

                Obviously, the official memo instructing all managers to discriminate gleefully. They are also instructed to cackle, to steal candy from children, to kick puppies, and (if male) to grow a pencil-thin mustache and/or a goatee. I’m not sur what the equivalent female-appearance hallmarks of evil are, but they’re almost certainly required.

                Fortunately, wrongdoers nearly always crate and preserve documentation of their intent to do wrong in great and explicit detail, so the tricky and unreliable business of examining their actions is not required.

                • This is ridiculous - astonishingly dumb hv says:

                  I’m not sur what the equivalent female-appearance hallmarks of evil are, but they’re almost certainly required.

                  I think they’re supposed to be succubi?

                • actor212 says:

                  I’m not sur what the equivalent female-appearance hallmarks of evil are, but they’re almost certainly required.

                  Shave your eyebrows, pencil in lines in an arching fashion, wear suits with shoulder pads, and promise “No more wire hangers!”

                • Malaclypse says:

                  I’m not sur what the equivalent female-appearance hallmarks of evil are, but they’re almost certainly required.

                  Panels from Rex Morgan, M.D., 6/19/11

            • David M. Nieporent says:

              Well, a company-wide non-policy. Had there been an actual policy being challenged, that would have presented a very different claim with a different outcome. The existence of an actual policy would have satisfied the commonality requirement of 23(a), in a way that a non-policy cannot.

        • NonyNony says:

          So in other words, like Scott said, gender discrimination is fine so long as you’re not stupid.

          Because really, if you’re promoting a guy who is obviously less qualified over a woman who is obviously more qualified, you’re stupid. But if you have a couple dozen managers who when faced with equally qualified candidates consistently promote the men over the women, then you have systematic gender discrimination that, if I understand the decision made by the Court, give the affected employees no recourse at all. Because their employer wasn’t stupid enough to discriminate in a stupid and obvious way and the case can only really be made in the aggregate, not for individual specific cases.

        • Chris says:

          First, you know, most discrimination cases don’t involve statistical proof.

          They don’t? Can you provide some data on that? As someone who’s done the statistics for several individual discrimination cases, my own experience says otherwise. But I haven’t done a survey of discrimination cases generally.

          • Warren Terra says:

            Second, you know, most rhetorical claims about most discrimination cases don’t involve statistical proof.

          • matth says:

            See “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?” (2009) (available on Google Scholar), page 112: “The vulnerability on appeal of jobs plaintiffs’ relatively few trial victories is more startling in light of the nature of these cases and the applicable standard of review. The bulk of employment discrimination cases turn on intent, and not on disparate impact. The subtle question of the defendant’s intent is likely to be the key issue in a nonfrivolous employment discrimination case that reaches trial, putting the credibility of witnesses into play.”

            The cite, though, appears to be to 20-year-old research (illustrating that all law review editors care about is that you have a footnote, not what the footnote says; I couldn’t find a more current source).

          • matth says:

            See also the UCLA Law Review article, “Was the Disparate Impact Theory a Mistake?” (2006) (available via SSRN); Section II describes how rare successful disparate impact claims are (but does not provide a quantitative comparison to intentional discrimination claims).

      • timb says:

        I think Scott’s rhetoric is okay int he sense that most of the people alleging this discrimination cannot afford to hire the attorney or pay for the litigation or the amount they were screwed over for is too small for litigation. Walmart and companies like it can always defend themselves, but the little gal has no shot under Scalia’s ideas.

        I trust that does not bother him. After all, if data and anecdotes are persuasive, what the f*ck could be?

  3. Pseudonym says:

    Well, what else did you expect from a strict textualist? He’s not about to go sniffing around the penumbras and emanations of empirical evidence. Isn’t it time the court revisited Brown v. Board anyways?

  4. Davis says:

    What the hell does he know about what “most managers” would do? Did he ever work at a Wal-Mart? So if a company has a written non-discriminatory policy, then assume that they don’t discriminate? I’m a retired bank examiner, and so my job would have been done if the bank emails me their loan policy that states that they would never make any shitty loans.

    • NonyNony says:

      I’m a retired bank examiner, and so my job would have been done if the bank emails me their loan policy that states that they would never make any shitty loans.

      I’m fairly certain that this is exactly the modern conservative policy for bank regulation, so I think you’ve got it nailed.

      • actor212 says:

        Too detailed. You merely need the CEO to aver that such a policy exists and will be provided if necessary.

        • Holden Pattern says:

          The CEO of any given bank doesn’t have to do anything. All you really need is a freshwater economist to note that markets are efficient, so banks can’t actually give bad loans. That covers all banks.

  5. actor212 says:

    If you can’t use statistics (I’ll grudgingly give him anedoctal evidence as iffy) how in the hell are you supposed to prove it?

    You need to wear a wire and have your boss’ boss’ boss say “Oh yea, women suck as employees, always getting knocked up when I tell them to give me some. I’d never promote one.”?

    • Malaclypse says:

      You need to wear a wire and have your boss’ boss’ boss say “Oh yea, women suck as employees, always getting knocked up when I tell them to give me some. I’d never promote one.”?

      That would, presumably, be anecdotal.

      • rm says:

        Neither statistical nor anecdotal.

        Neither quantitative nor qualitative.

        Basically, evidence is out, because empirical observations are impurities that contaminate the pure realm of Thought represented by the Text. The Text of the One True Constitution or the Text of the Wal-Mart Anti-Discrimination Policy, either is a Platonic Ideal that should not be sullied with mere context. Surely nearly all Wal-Mart managers are Strict Constructionists of their company policies.

        • SA says:

          Basically, evidence is out, because empirical observations are impurities that contaminate the pure realm of Thought represented by the Text.

          How else can one deal with the well-known problem that reality has a liberal bias?

  6. David Hunt says:

    On the subject of anecdotal and apocryphal evidence, I watched HBO’s presentation of Lawrence Fishburne in Thurgood a few months back. IIRC, Fishburne as his character of Thrugood Marshall mentions an infamous Supreme Court ruling that made the Jim Crow laws of the South much easier. I’m sure that any of the real lawyers here could name the case. I believe that it boiled down to saying that unless a law actually came out and explicitly said that it was made to discriminate versus negroes, it wasn’t discriminatory. I’m almost certainly oversimplifying, but I think the aid such a ruling’s enabling of the Jim Crow Laws would be obvious.

    Unfortunately, I can’t see much daylight between that ruling and the Wal-Mart case that Scott is discussing. I’d love to be told how I’m wrong because I hate what it says about the U.S. if I’m right.

  7. rea says:

    “Disparate Impact” is a very common means of proving discrimination, with a well-established body of law behind it. If an ostentisbly neutral policy leads to statistically disparate results (e. g., few women in management), then the production burden shifts to the employer to demonstrate a nondiscriminatory reason for the policy and its results.

    Where Scalia seems to be getting creative here is that he’s labeling Walmart’s policy of leaving everything up to local managers as a “nonpolicy”, therefore not subject to disparate impact analysis.

    • If an ostentisbly neutral policy leads to statistically disparate results (e. g., few women in management), then the production burden shifts to the employer to demonstrate a nondiscriminatory reason for the policy and its results.

      I’d like to point out that the second half of this sentence, contrary to the assertions often heard from certain quarters, is not “then the plaintiff has proven her case.”

    • matth says:

      Do you know how the burden-shifting would work in a classic disparate impact case?

      Suppose a company had a policy against promoting people who were the sole caregivers of young children, which has a disparate impact on the company’s female employees. So I certify a (b)(3) class of women who were sole caregivers of young children. The company explains why it adopted the policy, but let’s say its reasons aren’t very good, so the policy is unlawful. What damages do my class members get? Can the company still try to show that I’m not entitled to damages by proving that particular class members wouldn’t have been promoted even if it hadn’t adopted the policy?

    • David M. Nieporent says:

      “Disparate Impact” is a very common means of proving discrimination, with a well-established body of law behind it. If an ostentisbly neutral policy leads to statistically disparate results (e. g., few women in management), then the production burden shifts to the employer to demonstrate a nondiscriminatory reason for the policy and its results.

      That’s not quite right; you’ve conflated the Mcdonnell-Douglas burden-shifting approach to disparate treatment with the disparate impact burden-shifting.

      Unlike with disparate treatment, under disparate impact analysis, it’s not sufficient for the employer to demonstrate a “nondiscriminatory reason.” The employer must demonstrate that the challenged policy is job related and consistent with business necessity.

  8. dave3544 says:

    Another factor here is that, while individual women may still have the right to their day in court, there is a tremendous power differential in play. From what I can see, the Court said that it is now up to thousands of poor women to hire lawyers to sue one of the richest corporations in America. Sure, expecting Scalia to acknowledge that poor people have a much harder time getting justice is the same as expecting him to acknowledge that a company which has an explicit policy against gender discrimination might still engage in the practice, but this is another element in the diminishment of laws against gender discrimination.

  9. TT says:

    Would Scalia demand such exacting standards for, say, a group of white men who allege discriminatory hiring practices which favor minorities at a particular company (or government agency)?

  10. [...] on yesterday’s Walmart v. Dukes decision from Dahlia Lithwick and Scott Lemieux. Here’s Lemieux: …if you can’t use statistical and anecdotal evidence to prove gender [...]

  11. Alan in SF says:

    WIKIPEDIA: The full Senate debated Scalia’s nomination only briefly, and he was confirmed 98-0 on September 17, 1986.

    Thank you, Democratic Party. The towering achievement of Obama’s Presidency, the Lily Ledbetter law, pales before the damage done by Democrat-approved Supreme Court justices.

    • Scott Lemieux says:

      Yes, I’d have to agree that if a case in which every Republican nominee votes one way and every Democratic appointee votes the other way proves anything, it’s that there’s no difference between the two parties.

      • Incontinentia Buttocks says:

        I certainly think this Court suggests there’s a very real difference between the two parties. On the other hand, Alan in SF is correct that there wasn’t enough of a difference (at least among Senate Democrats) to prevent Scalia or Alito or Roberts from getting on the Court (Senate Republicans would certainly vote down or even filibuster any nominee as far to the left as these guys are to the right…not that our current President would be at all interested in putting such a Justice on the Court).

        It’s also worth remembering that, until two years ago, two of the three most liberal members of this Court were Republican appointees.

        Don’t get me wrong. One of the reasons I bothered voting for Obama in 20008 and will do so again in 2012 is the Supreme Court.

        But the biggest problems with this Court are principally ideological, not partisan. And on a number of issues (e.g. the 4th Amendment) the ideology of many of the Democratic appointees isn’t all that great, either.

        • timb says:

          Look, I have disdain for Scalia, but there is no real reason to vote against him on the bench. There are no statistics or anecdotes which claim he was corrupt and he is a smart guy. The problem was nominating him. President are entitled to pick someone who matches their judicial outlook and, unless that person is incompetent (like Thomas), that nominee should be approved.

          I guess what I’m saying is that i don’t like ideological litmus tests for judges (and that is what the confirmation process has become and it’s why it doesn’t work well)

          • Holden Pattern says:

            I guess what I’m saying is that i don’t like ideological litmus tests for judges (and that is what the confirmation process has become when Republicans have at least a filibuster-level minority in the Senate and it’s why it doesn’t work well).

            FTFY

      • L2P says:

        Especially when you’re blaming the Democrats for damage done in 1986, when nominees were routinely confirmed unless they’d literally shot the constitution with a Russian gun or something.

        Whey not blame Obama for Jim Crow laws while your at it?

        • Incontinentia Buttocks says:

          The Bork fight occured only a year later in 1987, so it’s not entirely ridiculous to ask why there wasn’t a bigger battle over Scalia.

          However, I do think that Senate Democrats’ handling of the Roberts and Alito nominations (especially the latter) are more worthy of criticism, precisely because, while Scalia appeared on the cusp of the era of embattled judicial nominations, Roberts and Alito appeared in the midst of it.

          • Alan in SF says:

            One of the key differences between the two parties, at least nowadays, is that you can always find Democrats, sometimes lots of them, who’ll vote for the most extreme Republican nominees, whereas Republicans will pretty much unanimously vote against any Democratic nominee, no matter how moderate. PS: I didn’t say anything about blaming Obama (although I do blame him for not being more aggressive with his appointments in general). I blame the DLC/Third Way Democrats. Obviously Obama is one of them, but this is not to blame him for Scalia.

            • Joe says:

              I still don’t know what your point is in citing something done back in 1986, when Reagan was replacing Warren Burger. Kennedy voted with the majority here too. Was that a mistake too?

              “Thank you, Democratic Party. The towering achievement of Obama’s Presidency, the Lily Ledbetter law, pales before the damage done by Democrat-approved Supreme Court justices.”

              98-0 meant Kennedy et. al. also voted for him. What is this about “Third Way” Democrats?

            • Alan in SF says:

              Just to clarify, since obviously the DLC was not a factor in a unanimous vote in 1986, I blame the DLC/Third Way Democrats for voting for Alito and Roberts, enabling the creation of an extreme right-wing majority on the court, which in turn has resulted in damage to employee rights far beyond whatever gains resulted from the Ledbetter law.
              The problem is not that the Democratic Party is exactly like the Republican Party, the problem is that it isn’t enough like the Democratic Party. In a somewhat similar vein, Obama’s genuinely important achievement of ending DADT, and hopefully at some point allowing marriage equality, both involve undoing indefensible policies enacted by a DLC President.

              • Joe says:

                Okay, honestly, I think your ’86 reference is a tad confused then.

                As to who “enabled” things, the The Senate voted 58-42 to confirm Alito. The Republicans had a majority. Did you want the Dems to filibuster? Who do you think Bush would nominate?

                I’m also not sure how Obama will “allow” marriage equality exactly. It isn’t really up to HIM. DADT was seen as an imperfect way to make things a bit better. DOMA was a symbolic expression of current law, which is not to defend it. They also were “enacted” by Congress.

                I’m all for making the Democrats more “Democratic.” I think it requires a bit of realization of how things work though.

                • Alan in SF says:

                  I think it was the “approved unanimously with little discussion” thing that set me off. SCOTUS nominations were actually in play at that point in time, as two LBJ appointees & two Nixon appointees were rejected, and Rehnquist got a substantial no vote from the Dems. My memory of the Alito nomination is that the Dems let it sail through because they had been so mean to Rehnquist, thus allowing a man as profoundly misguided, if not actually stupid, to join the court. To me, there’s a direct line from there to the gang-of-however-many got an up-or-down vote on Roberts and Alito … and onward to Peter Diamond, Elizabeth Warren and so many more. Republican extremists get a free pass, and Democrats can’t get nominate anyone who’s ever said a Democratic-sounding thing.

                  Obviously Obama can’t end DOMA. But its conceivable that the most admired national politician in America could speak out against discrimination in a way that might influence the debate. Or not.

                • timb says:

                  Rehnquist got a substantial no vote from the Dems.

                  That’s because there was a substantial question as to whether he was a racist bastard or not. It wasn’t due to judicial concerns about Federalism.

                  There are plenty of people who still believe he perjured himself when he tried to distance himself from the Plessy memo in both 1971 and in 1986

          • Joe says:

            Bork was a swing justice, Reagan was weaker and the guy (unlike pipe smoking loveable Tony) came off as an asshole. Oh, the Dems spent their energy targeting the elevation of Rehnquist to Chief Justice.

  12. CapnMidnight says:

    Scalia et al. are wrongt as wrong can about this, but it’s time to stop blaiming them. Giving the Supreme Court responsbility for this gioves them power.

    This is a statutory case. I could stay up late tonight and produce a drafting fix and a set of legislative findings that would make it clear that Congress wants the rules of civil procedure to acheive the result that the Court rejected.

    But Congress won’t do that– and not just becuase the Chamber fo Commerce runs the House. Their inaction is in aprt because we’ve all fixated on the supposed great importance of the Supreme Court, to the point where every acts as if the Justices have the last word, even on cases, like this one, where they don’t. (The Ledbetter Act and the early-90s civil rights act fix are big exceptions.)

    Energy would be better focused on convicning COngress that strong judicial review is only tenable with the legislature as an active partner.

    That is all.

  13. BG says:

    Of course, if the managers are so stupid as to say they are discriminating, the courts will treat it as “stray remarks’ and not relevant or probative. Such as the 11th Circuit’s decision that the use of the word “boy” was not evidence of discrimination in the Tyson Food case

  14. BarneyFranksSpeechTherapist says:

    I have some anecdotal evidence. I shop at a Wal-mart super center. The manager is a woman. Most of the employees are women too and now some lawyers want them to be included in a class action anti-discrimination lawsuit. Where is the discrimination?

    Would it not be unjust to include women who had not suffered discrimination in an anti-discrimination lawsuit?

    • Ed Marshall says:

      I’m less than shocked that you can’t imagine any positions higher than Store Manager at Wal-Mart.

    • Alan in SF says:

      The statistics show that women are systematically paid less than men for the same work, so unless BFST checked the pay stubs of the women in his WalMart, there’s a very good chance that, yes, they have suffered discrimination. Besides the fact that the statistics show that, the higher the position, the more likely it is to be occupied by a man.

      • BarneyFranksSpeechTherapist says:

        If women work for less pay than men, then corporations should hire and promote more of them. Think of the savings in the cost of labor. It is all about increasing shareholder value. Most shareholders don’t care if the job is done by a man or a women. All they care about is making a profit. Hire more women.

  15. efgoldman says:

    I don’t understand why this decision surprises anybody, left or right.

    If this reactionary court has shown us any pattern, its really clear that they will always always always find in favor of corporations and oligarchs and against individuals, especially powerless individuals.

    • Joe says:

      Except the various times this term when the corporation lost. Maybe one less “always”?

      The ruling is not surprising. It goes back to Thomas being opposed to class action suits when he worked in the Reagan Administration. People voted in Reagan and Bush, and did so in part because enough were wary of suits like this.

      The presidents chose justices who were more business friendly than many here like. Senate Dems were strong enough to block the particularly bad choice of Bork. The ultimate place of relief is the ballot box.

    • Scott Lemieux says:

      Can you please cite the person who is surprised by this outcome? I have yet to encounter one…

      • David M. Nieporent says:

        A 9-0 ruling against a Ninth Circuit decision? No, I don’t know anybody who’s surprised at that.

    • timb says:

      Still offends me, even though I know it will happen

  16. actor212 says:

    I shop at a Wal-mart super center.

    This explains so much

  17. Alan in SF says:

    It’s also worth noting that neither Thomas, Alito, nor Roberts got 60 Republican votes for confirmation. This is odd, because we’ve been repeatedly told by the Democratic leadership that there’s a 60-vote requirement to approve any appointment, or to pass any legislation.

    • Joe says:

      Roberts got more than 60 votes; your snark is a bit confused there, since no one is saying the votes to break the filibuster (which many Democrats wanted to reform and “DLC” Dems aren’t the only ones empowered by the practice) needs to come from one party.

      Are you saying here that the Dems should have filibustered these people? Practice now, as shown by both parties, has recognized some allowance in delaying lower court judges. Filibustering Supreme Court justices is much more controversial.

      When a Republican President is replacing William Rehnquist with an accomplished advocate like John Roberts in particular. Republicans could but did not filibuster Kagan or Sotomayor either.

      • timb says:

        God, I have an ideology, but can’t I believe that at some point we need to govern the country?

        I don’t WANT to be like conservatives with their homogenous, fact-less beliefs. I mean, good for them if they want to be lock-step in favor of their team, but I want to govern the country and NOT be like them.

        Besides the last time a country became so obsessed with teams, bad stuff happened

        • Holden Pattern says:

          But you can’t govern the country if you can’t form a sufficiently coherent organization based around agreement as to how the country ought to be governed.

          IOW, your thousand flowers blooming are being shelled into mud by the Republican artillery.

  18. David M. Nieporent says:

    This thread is like the Great Wall of Stupid. A whole lot of people who don’t know the law, don’t practice in these areas and haven’t read the opinion are debating something that Scalia never said based on Scott Lemieux’s misrepresentation (*) of Lithwick’s out-of-context quote.

    To say it clearly, and address about 75% of the comments above: at no point did Scalia say that plaintiffs in discrimination cases can’t utilize statistical evidence.

    (*) I’d blame it solely on Lithwick, except that Scott has made this same misrepresentation before (and even does a shout-out to it in his post.) McKlesky did not say that a plaintiff can’t cite statistical evidence. It said that the specific statistical evidence that was utilized didn’t prove the plaintiff’s case. Rejecting a study is not outlawing all studies.

    • timb says:

      Nah, he just said these plaintiffs cannot. which isn’t like precedent. He also said the plaintiffs cannot section 3 of the Federal Rules of Civil Procedure either.

      So, the shorthand is still fine: Scalia and his bretheren again make it difficult, if not impossible, for the little guy to challenge the big guy. ‘Cause, David, whether he wants stats in or not, does not mean a atty from a small law firm (like mine) has the resources to produce those studies. teh resources arose from the collective action that he — once again — has determined should not be available to plaintiffs, ’cause James Madison didn’t mention anything about class action.

  19. SpaceSquid says:

    Left to their own devices most citizens in any state— and surely most citizens in a state that forbids stealing cars—would select legal currency-based methods for acquiring automobiles.

  20. [...] Shorter The Supreme Court: “It’s Only Illegal to be Stupid; Gender Discrimination is Fine.” As Jacob Remes points out, this highlights once again why we can’t rely on courts to do our work for us, why we need organizing and action instead of legalism. [...]

  21. [...] discrimination… then there really isn’t a law against gender discrimination at all.” Notes on the recent Wal-Mart v. Dukes Supreme Court [...]

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