I have a column for the Prospect arguing that Scalia’s evaluation of the discrimination claims in Wal-Mart v. Dukes is part of a long-running conservative con:
The problem with ignoring statistical evidence is that doing so produces far too many false negatives: Even in historical periods in which white and male supremacy were much more strongly entrenched and more overt, it has been relatively easy for various actors to find race-neutral pretexts for their actions.
On of the strongest examples of this is voting rights. The 15th Amendment forbids racial discrimination in election rules, and yet—Scalia’s beliefs notwithstanding—African Americans were disenfranchised in most areas of the former Confederacy for nearly a century after its ratification. Two cases decided in 1876 demonstrate the effects of taking race-neutral policies at face value. In U.S. v. Reese, the Court permitted the use of literacy tests and poll taxes to prevent African Americans from voting because the policies were formally race-neutral, while in U.S v. Cruikshank, the Supreme Court was unable to see racial discrimination even in the systematic massacre of African-American voters. As a result, a combination of discriminatorily applied rules and state-sanctioned private violence suppressed the African-American vote for many decades.
Similarly, the Court was unwilling to uphold formal exclusions of African-Americans from jury service, but in a pattern that has repeated throughout Supreme Court history up to and including Dukes, decisions barring such discrimination were made irrelevant because the Supreme Court created standards that made discrimination nearly impossible to prove. In cases such as Thomas v. Texas (1909), the Supreme Court made it clear that no amount of systematic evidence was sufficient to show that discrimination was actually occurring. As a result, localities with large African-American populations could have nothing but all-white juries for decades without fearing an adverse constitutional ruling unless a state official was stupid enough to admit what was being done in open court.
Just remember that 1)systematic evidence is never sufficient evidence of individual discrimination, and 2)individual discrimination is always anomalous or anecdotal, and you too can be a conservative Supreme Court justice. (Principles void if white men are involved, of course.)