Too Big to Succeed

Remember when we were told a couple of years ago about the banks that were “too big to fail”? Well, the Supreme Court ruled today, in effect, that the class-action sex discrimination suit filed by a million and a half women against Wal-Mart was, well, too big to succeed.

Or at least today’s ruling in Wal-Mart v. Dukes certainly seems to be based on that rather curious premise. True, there’s some legalistic mumbo-jumbo in there, and it appears that in strictly legal terms the women filed the wrong kind of claim (that was the unanimous decision of the court). But ultimately, the problem was that they couldn’t provide the “glue” (Justice Antonin Scalia’s word) that held every presumed member of the class together. In the majority opinion, then, the “[respondents’] wish to sue for millions of employment decisions at once” is at the crux of the problem. In other words, the suit was simply too big.

The key word was “commonality.” Here’s Justice Scalia for the majority:

Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury.” This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”

OK, if I’m reading this correctly, what all this means is this: in order to file a class action suit, complainants must demonstrate that they suffered precisely the same injury from precisely the same source. The only way to demonstrate that would be to affirmatively prove a corporate culture whereby personnel decisions at individual stores, while presumably made locally, are in fact sufficiently influenced by a corporate culture that the decisions of a manager in California are in fact not independent of those made by a manager in New Jersey. That’s a very high hurdle, indeed, one which the majority (the usual suspects—Roberts, Scalia, Thomas and Alito—plus the occasionally free-thinking Kennedy) did not think had been met.

If that really is the standard, I’d have to agree with them. That is, if you really have to prove that the cashier who didn’t get a raise in Topeka and the model employee who was passed over for promotion in Ashtabula are victims of precisely the same decision-making process, I’m not sure you can get there. But, of course, here’s where there is dispute among the various justices. Justice Ruth Bader Ginsburg, writing for a minority which perhaps not-so-coincidentally included the other two women on the court (Kagan and Sotomayor), plus Breyer, argues that the very act of ceding authority to local managers is a consistent policy: “Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores.”

She also cites the precedent of Franks v. Bowman Transp. Co., in which “We recognized that the ‘qualification[s] and performance’ of individual class members might vary. ‘Generalizations concerning such individually applicable evidence,’ we cautioned, ‘cannot serve as a justification for the denial of [injunctive] relief to the entire class.’” For Ginsburg, the question isn’t whether common questions are the “glue” that joins all the complaints together, but rather whether such concerns “predominate” over individual matters.

For the majority, however, the fact that the corporation has a non-discrimination policy and procedures for filing discrimination complaints is sufficient to absolve Wal-Mart as a corporation from responsibility for the actions of dozens (hundreds? thousands?) of its managers, even if those individual actions were in fact discriminatory. Justice Scalia even snarkily observes that the women’s case has a mere 120 affidavits (“about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores”).

On this point, it seems to me that the good Justices could use a bracing jolt of the real world. Every corporation in the country has a non-discrimination policy; every one has an appeals procedure. These don’t exist because companies believe in equal opportunity; they exist because companies want to seem to believe in equal opportunity. They exist because their lawyers tell them—with cause, apparently—that some judge somewhere will be stupid enough to believe that a corporation’s public declarations have anything whatsoever to do with its actual day-to-day decision-making. If Mr. Scalia and his cronies got out more, they’d know that there are a million subtle and not-so-subtle ways of allowing all manner of discriminatory practices. Having a policy and enforcing it, in other words, are independent concepts.

Be it noted: the Court didn’t actually decide on the merits of the discrimination case, only on whether the women can legitimately be termed a class. The corporation’s official statement, then, that the decision “pulls the rug out from under the accusations made against Walmart over the last 10 years” is, like virtually everything else to come out of that company’s upper management, so much bullshit. There is no vindication of Wal-Mart’s actions here, only of their narrowly defined legal position.

There is, of course, plenty of evidence of discrimination: evidence in the form of anecdotal testimony, of statistics, of expert testimony about corporate culture. Indeed, Justice Ginsburg lays out the statistical case pretty well in her dissent:

Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” “[T]he higher one looks in the organization the lower the percentage of women.” The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.”

The ramifications of the decision are considerable: proponents of both sides agree that the ruling is probably the most important consideration of the notion of class action in a decade or more. Business advocacy groups, or at least those who, like the national Chamber of Commerce, represent largely major corporations, are thrilled because today’s ruling makes it more difficult for complainants to join resources, or indeed to exact significant penalties from deep-pocketed defendants.

On the other side, of course, are those who, like Joseph M. Sellers, a lawyer for the plaintiffs, believe the majority “reversed about 40 years of jurisprudence that has in the past allowed for companywide cases to be brought challenging common practices that have a disparate effect, that have adversely affected women and other workers.” Even more scathing—and no less accurate—is the critique of Marcia D. Greenberger, co-president of the National Women's Law Center, who said “the court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights.”

The women at the forefront of the case have vowed to fight on, and they may well succeed, either as individuals or as members of smaller, more homogeneous classes. But Wal-Mart is playing a divide-and-conquer game here, and will now be able to discount the most significant testimony against the corporation. They will, in other words, claim—just as Justice Scalia says they will—“to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store.” In other words, it just sort of worked out, corporation-wide, that men got more management opportunities, more raises, and all that stuff—and for a veritable cornucopia of different reasons. Coincidence is a wonderful thing, isn’t it?

As I’ve said here before, as in the case of the Westboro Baptist Church or the Silsbee High School cheerleader, what is legal is not necessarily what is just. That may be the women’s problem: they sought justice from a multinational monstrosity and from the Supreme Court. The former is unwilling, and the latter unable, to provide it.

It Was a Bad Week for the 4th Amendment

On Saturday, I wrote about an astounding case in the Indiana Supreme Court, in which the majority found that, 796 years of legal precedent notwithstanding, citizens do not have right to resist even an unlawful entry into their homes by police.

Not to be outdone in authoritarianism, the US Supreme Court on Monday issued its own mind-boggling decision to move us one step closer to a police state. While their ruling was not as transcendently stupid as the one in Indiana, it did have the advantage of having an 8-1 supermajority. No wimpy-assed little 3-2 margin here, no siree Bob.

Can we take as a starting place that if you’re seriously asserting that the Supreme Court of Kentucky sided too much with the civil libertarians, you’ve got a pretty damned reactionary SCOTUS? But that’s exactly what happened in Kentucky v. King, in which the nation’s highest court ruled overwhelmingly that a warrantless search can be justified by smelling marijuana and hearing unspecified noises which might be interpreted to suggest the destruction of evidence, even in the obvious absence of any attempt to do that.

Lexington police pursued a suspected drug dealer into a hallway in an apartment building. Faced with two possible doors through which the suspect might have exited, they smelled what they thought was marijuana smoke coming through one door, banged on the door, announced their presence, heard whatever they heard, kicked the door in, and found three people, one of whom was in fact smoking marijuana, plus “marijuana and powder cocaine in plain view.” By the way, the suspect wasn’t there.

The details are significant: for the initial search to be legal without a warrant: 1). the police must had a legitimate reason to believe the people in the apartment were doing something illegal, 2). they must have had cause to believe that evidence was about to be destroyed (not merely hidden--see below), 3). they must not have created that exigency themselves, 4). and it must have been impractical to secure the premises and get a warrant. For the subsequent search to have been legal in the absence of a warrant, there must have been other evidence already in plain sight.

Of those four criteria necessary to legitimize the arrest of the people in the apartment, then, (remember, all of which must be met in order for the search to be legal), I’ll give them maybe one and a half. That this is nonetheless enough for an authoritarian idiot like Samuel Alito does not shock me. That it’s enough for Elena Kagan is a little more troubling.

About the best the majority can offer is that there was the smell of marijuana, after all. True, I doubt that any of the cops in question could differentiate between the odor of marijuana and that of, say, the herbal cigarettes sometimes used in theatre productions to approximate dope-smoking, but I’ll give them that one. Is that enough to kick down a door without a warrant? For the Stasi, sure. For the Lexington Police, not so much.

Because, after all, we’re supposedly a nation of laws: so when policemen “[bang]” on your door “as loud as [they] could,” they are not “demanding” entry, because that, you see, would be illegal without a warrant, and our fine men in blue wouldn’t do that. No, pounding on a door screaming “This is the police” or “Police, Police, Police!” is little more than a polite request for conversation, tantamount to wanting to borrow a cup of sugar or wondering if the apartment's residents thought the Bengals were going to suck again this year. Notice that the cops can’t remember exactly what they said, but they remember that it was loud (because it has to be to fulfill one set of guidelines), and they definitely didn’t, for example, use the words “Open up,” because that would be unconstitutional. Uh huh.

The response to this conversation-opener was apparently “people inside moving.” OMG, NO! They might, of course, been moving toward the door to open it. They might have been walking away, since Justice Alito makes a big deal out of their right to do so:

… even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

They will let just about anybody be on the Supreme Court, won’t they? The one thing we can pretty much conclude didn’t happen was an attempt to destroy evidence. How do we know? Because all the evidence remained in plain sight. The people in the apartment would have had to have been even more incompetent than the police to have that theory fit the evidence.

Here’s the necessary time-line: the suspected dealer (remember him?) runs down the hallway and presumably enters the apartment across the hall, quite possibly slamming the door behind him. The police follow, probably not silently. Deciding to follow the wisdom of the great criminologist Toucan Sam and follow their nose, the police pounded on the apartment door, announced their identity, heard noises, decided what those noises were, “explained” (love that word choice) their intention to enter the apartment, and kicked the door in. During this time, all three people in the apartment remained in the front room, the marijuana and cocaine stayed in plain sight, and the “guest” didn’t even bother to put out his doobie. Interestingly enough, while I find this the most compelling argument to believe that the cops did some ex post facto consultation about what might conceivably get them a conviction, the Kentucky Supreme Court didn’t wish to pursue the matter, allowing the exigency argument to be assumed for the sake of argument, thereby allowing the US court to do so, as well.

The Kentucky court centered its argument that the search was illegal on the idea that the police created their own exigency: that by pounding on the door and announcing their presence, they precipitated the (phantom) attempt to destroy evidence. In other words, had they simply applied for a warrant, they would have received one, as the smell of smoke would provide probable cause. Justice Ruth Bader Ginsburg, echoing the Kentucky decision, wonders in her minority opinion

May police, who could pause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.

Justice Ginsburg argues further:

There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, “[persons] in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police.” Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.

The target of the investigation’s entry into the building, and the smell of marijuana seeping under the apartment door into the hallway, the Kentucky Supreme Court rightly determined, gave the police “probable cause . . . sufficient . . . to obtain a warrant to search the . . . apartment.” As that court observed, nothing made it impracticable for the police to post officers on the premises while proceeding to obtain a warrant authorizing their entry.

Remember, for the search to be legal, it’s got to be not just plausible, but likely, that things transpired the way I described above. Moreover, the exigency argument applies only to the destruction of evidence. If the people in the apartment were merely hiding that evidence, there is no legitimacy to breaking the door down. Ironically, if they had in fact successfully hidden the drugs just to the point that they were not in plain sight, there would be no question than a warrantless search would have been illegal.

Even the SCOTUS majority agrees that for “a warrantless search to stand, law enforcement officers must be responding to an unanticipated exigency rather than simply creating the exigency for themselves.” More importantly, they also grant that it is “a basic principle of Fourth Amendment law… that searches and seizures inside a home without a warrant are presumptively unreasonable.” In other words, it is not the apartment-dwellers’ responsibility to prove that the search violated 4th Amendment protections, but the state’s responsibility to prove that it did not.

Despite this, in large part because they simply assumed that the weakest part of the state’s case was true “for the sake of argument” (apparently because, and perhaps only because the Kentucky Supreme Court did so because they didn’t need that argument to decide against the police), a huge majority of the SCOTUS ruled the search was legal. Interestingly, had the police been competent enough to have chosen the right door on which to pound, it is much more certain they’d have needed a search warrant to enter the apartment of (apparently) a couple of small-time druggies. Police who know what the hell they’re doing need to follow the rules. It’s only the caricatures of the dumb and arrogant cop who, by virtue of their very unfitness to serve, are granted the privilege of ignoring the US Constitution.

This is serious. No, just as I don’t anticipate serial abuses of Indianans’ civil liberties as a result of that state’s absurd ruling last week, neither do I expect wholesale home invasions to stem from this SCOTUS decision. It is troubling, however, to consider the possibility that this case might be used to justify the unwarranted search of even a single citizen: a petty doper and coke-head now; perhaps just someone the police have a grudge against in the future. Some blogger who tends to disbelieve police stories without corroboration, for example.