Bench Memos

Getting the Wal-Mart Ruling Right

On the Corner, Ramesh Ponnuru corrects Dahlia Lithwick’s latest wild distortion of the Supreme Court’s ruling in Wal-Mart Stores v. Dukes. That reminds me of the sloppy accounts of the ruling that I ran across in the press the day after it was issued—the day, as it happened, that I headed on a family vacation and was therefore ill-positioned to blog. For example, this Washington Post article buried the fact that all nine justices agreed that the class certification was improper, and others (as I recall) blurred the distinction between class-certification and a ruling on the merits of a discrimination claim (just as Lithwick wrongly states that the Court “found that Wal-Mart could not be held accountable for discrimination in pay and promotions”). So, in the spirit of “better late than never”—and anticipating more media mischaracterizations—I offer this straightforward summary of the ruling:

1. Three female current or former Wal-Mart employees filed a class-action lawsuit against Wal-Mart alleging that Wal-Mart discriminated against them on the basis of sex. They claimed that by giving local managers discretion over pay and promotions, Wal-Mart was responsible for the disparate treatment of female employees that allegedly resulted from the discretionary decisions of Wal-Mart’s thousands of managers.

The district court certified plaintiffs’ proposed class of all women employed by Wal-Mart since December 1998, and a divided en banc panel of the Ninth Circuit substantially affirmed the district court’s certification order. The resulting certified class consisted of some 1.5 million members. (I have drawn everything in this point 1 from Part I of the Court’s opinion, which all nine justices joined.)

2. All nine justices agreed that the class certification was unlawful. Specifically, the Court was unanimous (with the eight other justices fully joining Part III of Justice Scalia’s opinion for the Court) that the class should not have been certified under Rule 23(b)(2) of the Federal Rules of Civil Procedure, which allows for class treatment when the party opposing the class has acted “on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The Court’s unanimous holding was that a class claim for monetary relief may not be certified under that provision “at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief.”

(Lithwick incomprehensibly presented this holding as involving the “technical question of whether the request for back pay was improper under a provision that normally provides only injunctive relief.”)

3. A five-justice majority of the Court also ruled (in Part II of Justice Scalia’s opinion) that the class-certification order also failed the threshold Rule 23(a)(2) requirement that there be “questions of law or fact common to the class.” The core of the majority’s twelve pages of analysis is that Wal-Mart’s alleged policy of allowing discretion by local supervisors over employment matters “is just the opposite of a uniform employment practice that would provide the commonality needed for a class action.” Because the majority determined that the putative class flunked the Rule 23(a)(2) threshold requirement, it foreclosed the possibility that on remand a class could have been certified under another subsection of Rule 23(b).

In dissent on this point, Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) disagreed with the majority’s Rule 23(a)(2) holding and would have reserved for remand whether a class could have been certified under Rule 23(b)(3).


I will readily presume that there is plenty of room for intelligent discussion of the competing legal merits of the positions taken by the majority and the dissent on the Rule 23(a)(2) issue. (I’m harder pressed to see how any sensible person could see the proposed Wal-Mart class as desirable on policy grounds, unless it is sensible to welcome trial-lawyer extortion of corporations and imposition of job promotion by quota.) But it’s not a promising sign if someone can’t even present the holdings in the case accurately.


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