0:00:00.2 S?: We'll hear argument first this morning in case 10-277, Walmart Stores v. Dukes.

0:00:11.7 Leon: Hey, everyone, this is Leon, from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael discuss Walmart v. Dukes. This is a 2011 ruling, in which the Court decided that a class action lawsuit filed against Walmart by 1.5 million women could not proceed. The women, all of whom had worked at Walmart, were suing the company over hiring and promotion practices.

0:00:35.3 S?: I've brought this case because I believe that there was a pattern of discrimination at Walmart, not just in my store, but I believe it is across the country.

0:00:44.3 Leon: But the case would never be argued on its merits.

0:00:48.2 S?: But the question inside the courtroom was not if Walmart stores had mistreated their workers, it was whether to let the lawsuit go forward as a class action or to throw it out.

0:00:57.4 Leon: The Supreme Court held that the plaintiffs bringing the case did not have enough in common to constitute a class, meaning they could not file a class action lawsuit together. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:18.5 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have sent our nation's values spiraling downward, like Bitcoin after an Elon Musk Tweet. Hi, I'm Peter. I'm here with Rhiannon.

0:01:34.2 Rhiannon: Hey, hello.

0:01:36.1 Peter: And Michael.

0:01:38.5 Michael: Hey, everybody.

0:01:38.6 Peter: How's everybody doing?

0:01:38.5 Michael: Doing alright. Good to be back.

0:01:42.6 Peter: Another great week on planet Earth, you know.

0:01:43.3 Michael: That's right.

0:01:43.7 Rhiannon: That's right.

0:01:45.8 Peter: Just glad to be here.

0:01:46.8 Michael: Every day, I feel more confident in our future.

0:01:50.4 Rhiannon: I'm just here so I don't get fined.

0:01:54.0 Peter: Which I should start fining you guys.

0:01:58.0 Rhiannon: Leon, you listening?

0:02:01.0 Peter: Today's episode is Walmart stores v. Dukes. This is a case about who exactly can bring a class action lawsuit. As you probably know, class actions are a procedural way for plaintiffs to band together as a unit and sue a company when they have all experienced the same basic harm. Like if you and 100 of your friends are swimming in a lake together, and a chemical company dumps a bunch of their chemicals into that lake, and all of you are covered in chemical burns and rendered infertile. I'm just trying to paint a picture here. You can band together in a class action lawsuit against the company. But there are rules about who can join together in a class action.

0:02:48.4 Peter: The people who are suing have to have enough in common with one another for it to make sense that they can sue as a unit. So if you and your friends were all in that same lake at the same time, sure. But if half of you were swimming in it a year later, or swimming in a different lake that the company dumps different chemicals into, maybe not so much. Maybe those can't be one case.

0:03:11.7 Peter: And that's what this case is about. It's about how much a group of people have to have in common, both in terms of their individual identities and their circumstances, to join in a class action. In this case, several female employees of Walmart brought a class action against the company on behalf of all of the female employees of Walmart, alleging that Walmart engages in a systemic practice of discrimination against women. And the Supreme Court, with a majority opinion written by Antonin Scalia, said that those women do not have enough in common to form a class, in the process making it substantially harder to bring class actions against large employers in discrimination cases.

0:03:56.6 Peter: I should note, there was a slightly more technical part of this decision that went 9-0, and I don't even think it's very offensive, it was a sort of sensible decision, but the portion that we're going to be talking about, about the commonality of the class of women, went 5-4, along the usual ideological lines. So, Rhi...

0:04:18.6 Rhiannon: I'm here, I'm ready.

0:04:20.1 Peter: Let's go. Background time.

0:04:20.4 Rhiannon: First of all, this case has been on our list for a long time, I feel. It's one that's periodically requested by listeners, we get DMs to ask us to do it and yeah, I think it's been on our list for a while. Did you guys read it in law school?

0:04:34.2 Michael: Yeah, for sure. I read in complex litigation. I think we came close to doing it a couple of times.

0:04:38.7 Rhiannon: I think so too. Yeah. So here we are. I'm glad it's... Today's the day. Okay. So this case is centered around, I guess we could say, initiated by one plaintiff, at least to start out with, and her name was Betty Dukes. Now, Ms. Dukes was in her mid-40s when she started working for Walmart in 1994. She was hired to work at the cash register for $5 an hour, and family actually said after her death in 2017 that she dreamed of moving up in the company, moving up at Walmart and one day, maybe working as a store manager or even for the Walmart corporate office.

0:05:17.5 Rhiannon: Ms. Dukes had been working at Walmart in Pittsburg, California. This is a suburban city outside of Oakland. She had been working there for about six years when she was disciplined after asking a co-worker to enter a one-cent transaction on a cash register, so that Ms. Dukes could make change for a large bill that she had. Now, Ms. Dukes said that this was a totally common practice, but nonetheless, she was disciplined for it and as punishment, she was actually demoted. So she complained to store managers that that punishment, being demoted to store greeter, that that punishment was too harsh and that it seemed that this was a part of discriminatory behavior by Walmart against her and her female colleagues.

0:06:04.4 Rhiannon: But she complained to store management and nothing changed. Now, Ms. Dukes said that she and other women employees of Walmart were routinely passed over for promotions and they were paid less than their male counterparts. So Ms. Dukes sought legal assistance, and she ended up serving as lead plaintiff here, the named plaintiff in this case. So the lawsuit that is brought is brought under the Civil Rights Act of 1964, which of course made it illegal for employers to discriminate on the basis of race or gender. And I just want to emphasize, though, underscore that this is a class action, it's not a lawsuit brought just by one person suing a business or another party. Betty Dukes is the lead plaintiff, but the lawsuit is not about fighting over just her specific experience, the punishment that she received for the supposed workplace infraction, whatever that was.

0:07:00.3 Rhiannon: This is a civil rights lawsuit, and since it's a class action, this is about identifying a systemic problem and grouping all of the people who may have been harmed in this same way together as a group of plaintiffs. So while Betty Dukes is the named plaintiff here, the lawsuit is filed on behalf of as many as 1.5 million female employees of Walmart at the time. That 1.5 million number, that included all of the current female employees of Walmart that year, as well as past female employees of Walmart dating back a couple of years.

0:07:37.7 Rhiannon: So before the plaintiffs can present all of their evidence, though, before you have a trial, before you're arguing in front of the judge or a jury about whether or not Walmart was in fact discriminating against women employees, this group of people suing the 1.5 million possible plaintiffs here, they have to be certified as a class, so that's the issue that eventually makes his way up to the Supreme Court in this case. A judge first has to certify the plaintiffs as a class, and then the lawsuit moves forward. So in 2001, this lawsuit was filed in Federal District Court in San Francisco, and in 2004, a few years later, the judge ruled in favor of class certification, he said, yes, this lawsuit can move forward as a class action.

0:08:24.1 Rhiannon: Now, Walmart appealed that decision to the Ninth Circuit Court of Appeals, and the appellate court affirmed, not once, not twice, but three times, actually, agreed again, that this class of plaintiffs should be certified as such and could move forward with a class action lawsuit. So after multiple re-hearings at the Ninth Circuit affirming that class, Walmart then appealed to the Supreme Court.

0:08:53.5 Peter: Yeah, so let's talk about the law a little bit. What the Federal Rules of Civil Procedure require is that members of a class in a class action have "common questions of law or fact," what's called commonality, meaning they must all have a legal complaint similar enough that they could be resolved together. The simplest way of understanding it is sort of, are these people victims of the same wrongdoing. This is one of the initial hurdles you have to clear to have your class certified, as Rhi mentioned, just means that you can proceed as a class action.

0:09:25.8 Peter: What Walmart argues is that hiring and promotion decisions, managerial decisions like that are made at the store level, so the class members are not victims of the same wrong, there are different store managers without a real connection to one another making these discrete decisions, so that this should really be a bunch of separate cases and not one big one. And Antonin Scalia buys that argument.

0:09:52.4 Rhiannon: First red flag, Antonin Scalia agrees with you.

0:09:56.0 Peter: He says that this class of female employees lacks commonality. He basically says that there is no evidence that Walmart had a centralized policy or practice that directly resulted in discrimination. Instead, like I mentioned, Walmart gives its store managers discretion in hiring and firing and promotion decisions, so he's saying there's not enough tying these decisions together. Again, this is just a collection of different cases brought by people who happen to work at the same company.

0:10:25.5 Peter: Now, we should get into some of the evidence that they brought forward to kind of show that they had things in common. First, there is evidence from a sociologist stating that Walmart's corporate culture could lead to discrimination on the basis of gender, and they also have statistical evidence showing company-wide disparities based on gender. And Scalia rejects all of that as insufficient. He says that the sociologist's testimony wasn't enough because even though they believed the corporate culture could foster discrimination, they couldn't pinpoint exactly how much discrimination resulted from that culture.

0:11:01.4 Rhiannon: Measure the discrimination. How many leaders of discrimination was it?

0:11:08.4 Peter: Obviously, it doesn't make a bunch of sense, because the point of the sociology expert in this context is not to trace every single instance of discrimination from the corporate level to the store level, but to explain how a corporate culture like the one at Walmart can trickle down from HQ to individual stores.

0:11:27.9 Rhiannon: Exactly.

0:11:28.3 Peter: Sociology, right? But Scalia is like, well, this doesn't prove anything, right. He absolutely cannot conceal his contempt for sociology as a field in his opinion, and again, most conservatives just believe this is a fake field, right, like, "Oh, you study patterns of social behavior, bro? Okay, yeah, right. Yeah, right buddy." So he obviously kind of feels like this is ivory tower liberal shit, right, in large part, I think, because social science has been used historically to point out that perhaps many of the conditions of the under-classes can be ascribed to systemic issues that maybe we should address, and the conservatives aren't really interested in explaining patterns in human behaviors, because they perceive socioeconomic and political hierarchies as organic.

0:12:23.2 Peter: So when social scientists are trying to explain those hierarchies or to explain various aspects of the human condition as outputs of systems and structures, conservatives don't just disagree with the conclusions, they reject the premise. They don't believe that that is something you can describe using science. Scalia is more or less just saying, a sociologist cannot explain this. And like, "Yeah, no, they can."

0:12:47.9 Rhiannon: Right, yeah. Objectively, no, no, they really can.

0:12:52.2 Peter: You're allowed to admit that social science has some explanatory power. It's okay.

0:12:58.7 Rhiannon: Absolutely.

0:13:00.1 Michael: And I really like, just right on the tail of him just shrugging off the work of someone who's spent their entire life like studying these sorts of things, and he's just like, "Hey, you know, actually, to the contrary," this is a quote, "Left to their own devices, most managers in any corporation would select sex-neutral, performance-based criteria for hiring and promotion that produced no actionable disparity at all." Where did he get that? Who knows? He just made it up.

0:13:29.8 Rhiannon: I love that.

0:13:30.6 Michael: He just said, "You know what, here's what I think," and just said it, and said, "That's it. That's the way it is."

0:13:38.7 Peter: This is so obviously not true. And Ginsburg, in dissent... And she has a pretty good dissent here, she mentions, not everyone has to know that they're doing discrimination. And this is the obvious trouble with these sorts of cases and why things like statistics and sociology are so useful, because if you went to these managers, probably only a handful of them are ever going to be like, "Yeah, I prefer the guys. Kind of a, kind of a man's man over here."

0:14:06.6 Michael: Between you and me. We don't want the ladies to hear, 'cause they get all upset.

0:14:13.9 Peter: At the cash register, with the math? Come on, buddy.

0:14:19.0 Michael: It's just so... It's just such a ridiculous example of how little a shit Scalia gives about any of this stuff. He's like, "This is just the way I believe the world is. And that that's what matters. You can't tell me it's different. I know what I know. I don't even need to cite a fucking study. That's just the way it is." What an asshole.

0:14:45.1 Rhiannon: Yeah, when Scalia is asserting out of nowhere that most managers in any corporation would select supposedly sex-neutral and performance-based criteria for hiring and promotion, he also emphasizes that Walmart themselves have a policy that forbids sex discrimination, and he relies on that too, as saying, "Look, they got it on the books."

0:15:13.1 Peter: Yeah. By the way, you're legally required to have a policy.

0:15:15.1 Rhiannon: Right, right. Yeah, exactly.

0:15:19.6 Michael: But the thing is, you're not just legally required to have the policy. The point of that legal requirement is so that there is no sex discrimination. It's not just you gotta have a sign that says "no sex discrimination," and then once you do, then you discriminate all you want.

0:15:33.2 Peter: Sorry, kid, it says alligators beware. The alligator is sex discrimination.

0:15:40.5 Rhiannon: Yeah, got it.

0:15:41.4 Peter: I'll work on this metaphor for the next case.

0:15:43.9 Rhiannon: Yeah, so yeah, it's not just that he's asserting just his belief about how usually managers operate in a corporation, he's also saying, "Look, they posted the rules. They have this rule and so surely they're not breaking it."

0:16:00.6 Michael: You know how many days in his life Scalia worked in a large corporation?

0:16:04.4 Rhiannon: I was just about to wonder aloud about this.

0:16:07.0 Michael: It's zero.

0:16:07.1 Rhiannon: Yeah, right. Exactly.

0:16:08.6 Michael: He worked for a law firm, which is not anything at all like a large corporation like Walmart, and it was in the '60s, so it has no bearing at all on modern corporate culture, and then went right into government. He was in Nixon's White House, and then he was an academic and then a judge. That's been his life. Never once, not a day that I know of.

0:16:29.7 Rhiannon: And yet, still sort of offering this refute of sociologists' data, people who have actually studied what these corporate cultures are like.

0:16:38.8 Michael: Yeah. But it's not the corporate culture in Scalia's mind, and that's what's important here. So despite what Scalia is saying, and despite Walmart having a policy that forbids sex discrimination, the plaintiffs, they did have some other evidence, which was statistical analysis, showing that, hey, actually, it turns out, Walmart is not very good in its hiring and promotion practices in regards to gender. And they had a couple experts, a labor economist and a statistician, I think, who ran regression analyses on a bunch of different data, and found that Walmart promoted a lower percent of women than its like competitors, and that was true at a nationwide and at a regional level, because Walmart is broken up into a number of sub-regions.

0:17:31.2 Michael: So, consistent, consistent across regions and nationwide, which is hard to think of a better way to measure and demonstrate a pattern and practice of sex discrimination, than literally the numbers of how often they promote women. The problem the plaintiffs run into here, though, is that Scalia's opinion of statistics is basically the same as his opinion of gender discrimination, which is that they're both fake, they're not real, they don't exist.

0:18:07.8 Peter: The only type of regression that Scalia does not support is regression analysis. It's worth noting that statistical proof in employment discrimination is essentially the most effective form of proof, and is rejected by conservatives who view all wrongdoing as sort of inherently non-systemic, as discrete and atomized, and we've talked about that a lot, but I think in this context, it's jarring, because people don't realize they're doing discrimination all the time. So how do you suss it out? How do you know that a given decision was discriminatory or not?

0:18:46.0 Peter: Well, you can take a step back and look at the patterns that you're spotting at given stores in given regions at given companies and see what they say. Now, if they have statistics, saying that Walmart is promoting a lower percentage of women than its competitors, then perhaps, perhaps that is an indicator that something is amiss at Walmart in particular.

0:19:09.6 Michael: Right. That seems reasonable. That's a reasonable inference, I think.

0:19:13.6 Peter: And I think what Scalia was hinting at, when he was like, "Well, managers would love to make neutral decisions," what he's hinting at is, sort of, if there is a disparity, maybe there deserves to be a disparity. But if that's the case, then why is it different at competitors? You need to be able to bridge these gaps, even if you do believe that there might be some valid reason for huge statistical disparities between the treatment of men and women at a company, which I pretty much reject outright.

0:19:44.1 Michael: Yeah. Because there's this sort of ideological opposition to systemic approaches to things, a lot of times, this opinion from Scalia reads almost like it's arguing against the idea of class actions entirely. You're reading and you're like, "Okay, but then how could you ever possibly satisfy the commonality requirement?" He's going off and saying, "Well, look, just 'cause the disparity is consistent across the region, doesn't mean it's consistent in each store." And then he literally says, "Even if you could statistically show that every single Walmart store in the country, all 3400 of them, all of them had disparate promotion practices and hiring practices, such that women were promoted less, that still wouldn't be enough." That's just not enough.

0:20:35.7 Michael: And his reason why that wouldn't be enough to satisfy a commonality in the class action is, he says, "Well, because some managers will claim that the availability of women, or qualified women, or interested women in their store's area does not mirror national or regional statistics." And almost all of them will claim to have been applying some sex-neutral performance-based criteria. And what I want to know is, who fucking cares what the managers will say? That's what the trial is for, that's why you have a class action trial, is to find out whether they actually are applying these. It's insane, it's an insane thing to just shrug your shoulders out and be like, "Yeah, but they'll say this." It's like...

0:21:20.5 Peter: He's play-acting the whole trial in his mind.

0:21:22.2 Michael: Right, exactly. It's like the equivalent of, "Prosecutor, you say you want to throw this guy in jail for drug possession. But have you considered that some defendants will say that the police planted those drugs on them? And nearly all defendants will say the drugs aren't theirs. So I guess we just can't prosecute people for drug possession anymore. That's just... We can't do it."

0:21:46.9 Rhiannon: When you accuse someone of a harm, you have to take their first explanation.

0:21:50.2 Michael: And you just take it at face value, and that's what it is.

0:21:52.8 Rhiannon: That is it. That's where the law ends, folks.

0:21:56.3 Peter: A huge percentage of this opinion is him just being like, "Now, here is the noble Walmart manager, and he is a hero in American society at making only the best decisions for Walmart and the country writ large." It's bizarre, why we have to assume like he does, that managers are just not discriminatory. And when the whole point of the case is trying to find out whether Walmart is discriminatory, and you have a Supreme Court Justice, just without any basis, saying, "Well, we all know that they're not." That feels like a concern.

0:22:31.8 Michael: Maybe we're not getting a real fair hearing on the legal merits here.

0:22:40.9 Peter: If Scalia's concern is that the plaintiffs have not identified a common thread across the company, doesn't the fact that these gender disparities exist and aren't addressed count? Even if the issue is, you have 3400 different store managers making 3400 different decisions, Walmart HQ sees the data. I promise you, they know that there are massive gender disparities. They know that fewer women are promoted. So how is the failure to act at the corporate level not enough for a case here? Are they taking steps to remediate these disparities? We'll never know, because Scalia pretended that this was not enough information to predicate a case on. There's this fundamental disconnect in the majority opinion, because we know from the statistics, that the hiring and promotion practices at Walmart are discriminatory across the company, we know it. The only question is, why.

0:23:32.9 Peter: And that's why you should have a trial, that's why the case should proceed. If Walmart can show that its corporate policies and practices are not responsible for the disparity, fine, it can do that during discovery, during the trial.

0:23:45.6 Michael: Right. It can win its class action.

0:23:48.2 Rhiannon: Right, period.

0:23:50.3 Peter: But these statistics showed substantial gender disparities across 3400 stores. Sorry, but that's enough to give the plaintiffs the opportunity to move forward and prove their case here.

0:24:00.4 Rhiannon: Period, yeah.

0:24:00.4 Michael: Absolutely. And I do think it's significant that it's Walmart in particular, because Walmart is massive, Walmart is the largest importer in the United States, and almost twice as large an importer as number two, over twice as large as number three. It's the largest employer in the United States, by a healthy margin, 2.2 million employees today, roughly. Number two, employer, Amazon, is about half that, at 1.2 million. It's massive. It is a huge piece of the American economy. And so, if you can't get into this as a matter of public concern, and address it as an entity, that's a major problem, it's like a blind spot in the law. You need to have mechanisms for making sure that when Walmart says they have a sex discrimination policy that prevents gender discrimination, that it's working, that there needs to be a mechanism for that. And Scalia seems to be ruling that out.

0:25:03.5 Peter: Right. The logical end point of Scalia's reasoning is that if a company is large enough, the corporate entity, the corporate HQ, is so distant from the employment decision-making processes, that you simply cannot bring class actions against them on that basis, essentially holding that, at least when it comes to class actions for discrimination, some companies are just too big to sue. And to your point, when you have a company that is employing a massive chunk of the population, nearly 2.5 million, and not only that, but you have similarly situated large companies, you've got Amazon, you've got Target, when you start piling together all these massive corporations, you get to over half, by the way, of the American workforce.

0:25:50.0 Peter: So what you're basically saying is that half of the... Half of the American workforce has this extra hurdle when it comes to suing their employer. The company is just too big, and there's a weird legal thing going on here where Scalia's almost implying that you have to sort of sue store by store, right. But if you did try to do that in a class action, you would run into a different problem called numerosity, which is another one of the requirements of a class action, meaning that there need to be enough people in the class for it to make sense to litigate as a class, and a single store would almost certainly be too small.

0:26:24.3 Peter: So if you try to do a bunch, they don't have enough in common; if you try to do one, it's not big enough. What that says to me is, you can't do them, you just can't do class actions.

0:26:35.1 Michael: I mean, if there's a public policy direction we should be leading here, it should be to make it easier to sue the massive employers, because they are almost like a semi-public institution given their size and importance to the economy.

0:26:52.3 Rhiannon: That's right.

0:26:52.8 Michael: And instead, it's going the opposite direction, like sort of reins off, right. And before we sort of close on Scalia's opinion, I did want to mention we have joked a few times that Scalia is a sexist and he doesn't really believe in women's equality anyway, and blah, blah, blah. To that point, I think it's worth noting that he block quotes a Ninth Circuit Court of Appeals judge who had dissented below when the Ninth Circuit upheld the class certification. The judge he block quotes approvingly is Alex Kozinski...

0:27:30.8 Rhiannon: Well, well, well.

0:27:33.0 Michael: Who has recently been run out of the judiciary for being a total sex creep, sexual harasser. But the thing is that's not new, Kozinski is a well-known for decades freak, who literally brought down like the Circuit Courts of Appeals firewall in a felony offense, that wasn't prosecuted, opening up all the confidential documents of the Courts of Appeals to hackers because he wanted to download porn.

0:28:01.7 Rhiannon: On his work computer.

0:28:03.2 Michael: On his work computer. That was in 2001, about 10 years before this opinion. In 2009, he was censured and sent to the disciplinary committee for maintaining a large and public repository of pornography. Like, people knew that he harassed his female clerks. Everybody knew. And that's the guy that Scalia's like, "Yeah, he's got a bead on the ladies and their complaints."

0:28:29.5 Michael: And so I'm not just going to quote him, I'm going to quote like a whole fucking paragraph that he wrote, it's important.

0:28:36.8 Peter: I think it is time for a quick break. Nailed that one.

[chuckle]

0:28:48.6 Peter: Alright, we are back, and I think it is time to take a step back and put this case in its historical context. It's important to understand how conservatives kind of came to rally against class actions. In the 1970s, many seminal employment discrimination cases were class actions. They were much more common than they are right now. At the end of the '70s, there is a case that Scalia cites quite a bit in this opinion, General Telephone Company v. Falcon, that really kneecaps class actions in the employment context moving forward.

0:29:24.4 Peter: So you see a major drop-off. In the '80s, though, as monied interests really start to wrap their tentacles around the Republican Party, you see the rise like a bunch of almost public-facing, almost PR-ish arguments against class actions. And what conservatives did was try to frame them as shakedowns, and the argument was that the potential for damages in big class actions was so high that companies were essentially being blackmailed into settling them.

0:29:56.2 Rhiannon: Idiotic.

0:29:56.2 Peter: Now, the actual research on this does not show any data that would suggest that employers are or ever were settling class actions at a higher rate than they are non-class actions of similar size. In fact, the data shows that employment class actions in general, like I mentioned, dropped off heavily starting in the 1980s, and there's certainly no good evidence that companies are or were being forced to settle class actions that had no real merit. Companies settle large claims more often than smaller ones, generally speaking, just because large cases are a lot of uncertainty to keep on your balance sheet.

0:30:33.3 Rhiannon: Absolutely, sure.

0:30:33.4 Peter: But that's about it. The fear of blackmail by class action is just made up, but that has not stopped conservatives from wringing their hands about it. In fact, famed Seventh Circuit Judge Richard Posner based an actual holding on this premise in the mid-90s, and like Michael mentioned, you can really see Scalia's disdain for class actions generally in the opinion. He starts off the analytical portion with a quote, "the class action is an exception to the usual rule that litigation is conducted on behalf of the individual named parties," but like what rule? What rule is that?

0:31:10.9 Peter: Class actions are part of federal law, and he's just pretending that they are this weird anomaly. That's how he treats it, he treats it like this is a deviation from the law somehow, when in fact it's just a procedure that is very much built into the framework of the federal rules.

0:31:27.9 Rhiannon: Absolutely.

0:31:28.1 Michael: It's codified by law.

0:31:28.2 Rhiannon: Yeah, exactly. Class action has a long history in the US. It used to be known as representative litigation. We got it from English law to begin with, when back in the 13th century, actually representative and group litigation was the norm, was the rule in England. But the modern conception of class action litigation really came out of a change in the federal rules of civil procedure in the '60s. It was really just a consolidation of all of the requirements we have regarding class certification into one big rule in the Federal code.

0:32:04.6 Rhiannon: And that rule change came about in part because legal scholars and economists at the time began noting that class action litigation could efficiently and effectively support government regulation of big industry and other markets. It was a good accountability mechanism for corporations. And also, we had the rule change because the Civil Rights movement and growing movements for the environment and consumer protection, for instance, were showing that legal harms were falling on whole groups of people, in a way that individual lawsuits couldn't effectively address. So like Peter said, Rule 23 is a part of the federal code, and it's the basis for certifying classes in all kinds of areas of law, not just civil rights.

0:32:52.5 Peter: But it does come from the Civil Rights movement, which makes this yet another in the sort of laundry list of things that conservatives oppose that come out of the Civil Rights era, by coincidence, just... And there's... A sort of open secret here is that class action isn't even more expensive to companies per se, it's actually less expensive on a case-by case basis, meaning that a company would much rather deal with a class action that has a thousand plaintiffs, then one thousand individual lawsuits. The real difference is that class actions allow people to bring claims who otherwise wouldn't, either because the amount they're seeking is too small or the hassle of litigating is too great, or both. That's where the cost savings of eliminating class actions is for employers. When class actions are prevalent, companies no longer get to bank on employees giving up on their claims.

0:33:51.8 Michael: That's right, that's right. And a point we've discussed before, and I think hits on what Rhiannon was saying earlier, is that conservatives really want to have things both ways here. Like they are big supporters of laissez-faire economics, where there's very little regulation on the front end. A lot of them will tell you they're not happy about Title 7, requiring sex discrimination policies, the government should be out of private businesses' internal policies and leaving them alone. But then the flip side is, they don't want the back-end form of regulating and incentivizing corporate behavior, which is litigation. You have to have one or the other.

0:34:37.7 Rhiannon: Yeah, at least.

0:34:40.8 Michael: Yeah. Preferably both. But here, it's... This is a perfect example of this larger project of creating a lack of corporate accountability. Letting corporations do what they want. According to Scalia, as long as you have a sign up on the door that says you don't sex discriminate, and you're a massive corporation, there's not much...

0:35:00.8 Rhiannon: You're good.

0:35:01.9 Michael: Yeah.

0:35:02.9 Peter: In a lot of ways, this case is just a perfect storm for the conservatives on the Court. Class action against a large company, not just any large company, but Walmart, the main street mom and pop shop-destroying minimum wage king. It's a gender discrimination case, they're using statistical and social science-based evidence, this is just... Like Scalia was salivating reading this cert petition, this is right down the center plate for someone like him, who's just a Fox News Republican.

0:35:34.3 Peter: These are all sorts of right-wing, talk radio grievances, to a degree. And one of the best pieces of evidence that Scalia is driven by politics and ideology and not his concern for originalism or textualism or whatever, is that those things in and of themselves never get him very heated. If there's just a case about a dry textualism issue and you're just doing some plain statutory analysis, Scalia doesn't freak out at the dissenters, or at the majority if he's in the dissent. All of his famous fiery opinions are, without fail, about culture war shit.

0:36:10.4 Peter: He's sort of medium heated here, because this isn't his real wheelhouse, this isn't gay rights or something like that, where he really hits his fever pitch, but it has some talk radio, Republican grievance politics sort of elements. And so, he gets a little snarky at times, but you just never see that snark when it's just, "Oh, let's interpret the statute in a very boring way."

0:36:33.9 Rhiannon: Right. Which is what he says he cares about the most. Yeah. Yeah, exactly. And I'm glad you brought up the kind of culture point, Peter, because I think it's easy to see the number of possible plaintiffs in this case, to just see the number, 1.5 million, and just kind of a knee-jerk reaction, just brush it off. Because in our modern legal culture, we're used to saying stuff like, "Oh, the court system just can't handle that. The federal judiciary just can't handle a case that big," or something like that, or, "That's not what the courts are for, litigating harm on 1.5 million people," bullshit like that.

0:37:10.7 Rhiannon: But I think it's important to know that that culture is a conservative culture, built through cases like this, where their loudest and most depraved demagogues say this stuff, and they support it with technical rules in this formal veneer. So always, when we're reading cases like this, I try to zoom out and just ask myself, "The majority opinion, Justice Scalia, who is he actually caping for here? All this hand-wringing and the bloviating. Who is this for? For what? For who?" And here, it's literally Walmart, Walmart, Walmart, Walmart.

0:37:49.0 Rhiannon: We all know. That is wild, and we don't have to accept it, just like, "Oh, them's the rules. Sorry, that's what the Federal Code of Civil Procedure says," because it doesn't. And so it doesn't have to be this way. This is an ideological preference, and that doesn't have to be the legal culture, the legal context in which we operate. A good example is, the courts below, the district court and the Ninth Circuit disagreed with the Supreme Court here. They affirmed this class, as it was defined, with the 1.5 million possible plaintiffs in it.

0:38:23.1 Michael: And I'll just say, judges differ, for sure, but if this was really as non-justiciable as the conservatives wants you to think, I don't think the District Court would have been so quick to certify the class, they would have been looking for ways out. They would have been like, "I don't want to fucking deal with this." That's...

0:38:40.5 Rhiannon: Really good point. Another note, the length of time that this case took, I think, is worth mentioning here. So the lawsuit was originally filed in 2001, the District Court certified the class in 2004, then Walmart appeals over and over again, until we get this decision in 2011. That is 10 years of litigation, about not whether or not there was discrimination at Walmart, but about whether or not they can proceed with the lawsuit. No one ever heard all of the evidence of discrimination, no one ever heard all of the expert testimony or the testimony of employees who worked at Walmart. This was fully a decade of litigation, until the Supreme Court here said, "Yeah, no, no, no, you can't sue like this. Sorry."

0:39:33.3 Rhiannon: And so, you have to think about who that hurts and who this burden is falling on. We're talking about minimum wage female workers of the largest private employer in the world, the world's largest company by revenue. We said, to date, more than 2 million people work for Walmart, so imagine telling a class of employees there, not even 1.5 million, say 40,000 in a sub-region of Walmart, 40,000 employees who have a claim, imagine telling them, "This is going to take 10 years before you're even approved to move forward with your lawsuit as a group like this." That's just cuckoo lulu bananas bonkers.

0:40:12.3 Peter: Yeah. It is cuckoo lulu...

0:40:15.0 Michael: Bananas.

0:40:15.0 Rhiannon: Bananas bonkers.

0:40:17.0 Peter: Bananas bonkers?

0:40:17.4 Rhiannon: Thank you.

0:40:18.1 Peter: Okay. I wasn't sure if it was bonkers bananas or...

0:40:20.6 Michael: Cuckoo lulu bananas bonkers. Come on, man.

0:40:22.8 Rhiannon: CCLLBB, bitch.

0:40:25.9 Peter: At some point, you have to admit that this is not about the resolution of claims. This is just navel-gazing for legal academics, at this point. If you had told these plaintiffs that it would have taken 10 years to even get to this stage, on day one, they would have immediately dropped the case. What's the point? What are you going to do, over the course of 10 years? It is the shittiest job on the planet, the person that says hi, when you go into Walmart. Holy shit. Is there a worse job?

0:40:58.2 Michael: There might be. It might be Matt Gates' young aide.

0:41:07.8 Peter: I'm talking about jobs you consent to.

0:41:12.2 Rhiannon: There might be worse jobs in the abstract, but...

0:41:15.1 Peter: Look, just stop taking what I'm saying so literally. I just said worse job. Jesus. That job fucking sucks, dude. $5 an hour, at this time, and people walk into Walmart and you're like, "Hey," and they're like, "Fuck off," and you're like, "We'll see about that promotion, once my case gets to the Supreme Court, in a decade."

0:41:34.8 Rhiannon: Right? In 10 years. Right. Yeah, and you have to think about who does that job. A WalMart greeter is likely an elderly person, for whom having a job is necessary at their age, because they don't have enough income, but at their age, they don't have enough skills or energy or whatever to have a higher-paying job.

0:41:57.9 Peter: Yeah. They also might literally not have 10 years. If you're 80 and they're like, "Don't worry, we'll get your case resolved in a decade," it's like...

0:42:06.7 Rhiannon: Yeah. This is nonsensical.

0:42:08.8 Michael: These are people that our society's already failed, multiple ways, and then both taking this long to even consider this, and the way it was resolved, is just two more failures, on top of that.

0:42:22.2 Peter: There really is something extra disgusting about these people, who are on the absolute lowest rung of not just Walmart's sort of corporate ladder, but in a lot of ways, various social hierarchies that exist in this country, because we ascribe value in capitalist societies to people based on how much money they make and how successful they are. These people are pointing to a very obvious discrepancy that they can prove with statistics across this entire massive company. It takes a decade for the Supreme Court to have Antonin Scalia's dumb fucking ass read their briefing and say, "Nah, no, I don't really think so."

0:43:06.3 Michael: Yeah. I'm pretty sure, those guys, managers, they're definitely guys, were on the up and up, when they were making their promotion decisions.

0:43:14.5 Peter: Right. Just to escalate your issue to the Supreme Court, only to have Antonin Scalia say, "Well, I don't think store managers are discriminating," and then close your case, bang, that's it.

0:43:24.8 Rhiannon: A man who, by the way, we should say, would not survive one shift at Walmart.

0:43:28.8 Peter: No, no, absolutely not. I'm not sure he would survive shopping at Walmart. I think that the bottom line for me is that, if you're making an employment discrimination claim, your point is that Walmart owes you money. They should have promoted you or they shouldn't have demoted you, or they should have hired you, they shouldn't have fired you. Walmart owes you money, that's the crux of these cases, and it's probably not a lot of money. It might be meaningful to you, if you're one of these women, but it's probably not a lot of money.

0:44:00.2 Peter: And for this process to take a decade, the process of them slowly saying no to you, was 10 years of you probably getting by at or near minimum wage, after Walmart fucked you out of your job, or fucked you out of your promotion or whatever it might be. That to me, is egregious. There's obviously a lot going on here at the end of the day, from Scalia just using his dislike of class actions to narrow their applicability, without any real basis in the law, to his insistence that discrimination is not real or something.

0:44:39.1 Peter: But at the end of the day, we try to ground this in how the legal system impacts people, and I think the bottom line is not just that employment class actions are harder to bring now, it's that these women, potentially 1.5 million of them, had to wait a decade to find out that they weren't going to get anything from Walmart. That to me is, in and of itself, leaving the rest of the case aside, a failure of our justice system.

0:45:06.2 Michael: Agreed.

0:45:07.3 Peter: There's a connection that I think is important to understand here. Since the 1970s, we've seen the steep decline of union participation in this country, and at the very same time, we saw the decline of class actions, and that is in large part the same phenomenon. There are interests on the right that are working against the ability of labor to organize through any mechanism, whether it be unions or class action, and it's a multiple front war, and when you see union participation declining into low double and single digits in many circumstances, and then on the other hand, you see the knee-capping of the ability of workers to collectively organize in litigation, it's important to recognize that those are the same thing, that's the same phenomenon, that is one thing that, is organization from corporate interests that is specifically targeting the ability of workers to represent their own interests.

0:46:13.1 Peter: I do want to say one final thing and maybe leave us on a slightly happier note, which is that there was a lot of talk at the time when this came down that employment discrimination class action was dead, that Scalia had just killed it, and in reality, it has actually not been so clear. And a lot of class actions against comparable employers, namely Costco, have been able to move forward. And the funny thing here is that a lot of the reason that courts have been able to distinguish this case from the more recent cases, is that Scalia in his sort of bloviating way uses such extreme language, he was like, this is the largest class action in history, and all of that sort of exaggerated language he used gave a lot of lower courts ways distinguish this case from the cases before that.

0:47:07.1 Peter: And they distinguish it on that basis, so his own sort of tendency to be a grandstanding piece of shit resulted in this case not being as impactful as it might have otherwise been.

0:47:21.7 Rhiannon: Gorgeous.

0:47:22.3 Michael: Each shit, dude. Hope you're enjoying hell.

0:47:27.1 Peter: Nice and warm.

0:47:34.5 Peter: Next week, premium Patreon subscriber-only episode on Brett Kavanaugh. We're going to be talking about the confirmation hearing, the allegations and the man, let's just get to know him. Let's get to know this guy. I am going to do a full re-enactment of his confirmation hearings.

0:47:56.8 Rhiannon: Oh, God.

0:47:57.7 Michael: I'm going to funnel three beers just to get in his mindset.

0:48:00.6 Peter: I have never been more juiced. It takes a lot to get me to be watching a confirmation hearing, but I was watching Brett's, when he first sits down and you can just see that he is cranked, ready to go, I was like, "Oh, my God, this is about to be fucking nuts." And he's just right off the bat, just screaming, it's so fucking good.

0:48:18.9 Peter: Follow us on Twitter at @fivefourpod, join our Patreon, patreon.com/fivefourpod, all spelled out, fivefourpod. We got all kinds of benefits, premium episodes like next week's, we've got discounts on merch, you've got access to our Slack, it's endless.

0:48:39.4 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is [0:48:50.7] ____. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.