Operating Instructions
The Supreme Court shows corporate America how to screw over its customers and employees without breaking the law.
By Dahlia LithwickPosted Friday, July 1, 2011, at 5:21 PM ET

Was the Supreme Court’s Wal-Mart case a bellwether? Or an instruction manual? Click image to expand.Was the Supreme Court’s Wal-Mart case a bellwether? Or an instruction manual?Depending on how you count “big cases,” the Supreme Court has just finished off either a great(according to the U.S. Chamber of Commerce) orspectacularly great (according to a new study by the Constitutional Accountability Center) term for big business. The measure of success here isn’t just the win-loss record of the Chamber of Commerce, although that’s certainly part of the story. Nor is it news that—in keeping with a recent trend—the court is systematically closing the courthouse doors to everyday litigants, though that’s a tale that always bears retelling. The reason the Roberts Court has proven to be Christmas in July for big business is this: Slowly but surely, the Supreme Court is giving corporate America a handbook on how to engage in misconduct. In case after case, it seems big companies are being given the playbook on how to win even bigger the next time.

Start with one of the most important cases of the term, therecently deceased class-action suit filed by a million and a half women employed by Wal-Mart. The headlines—including mine—contended that the import of the court’s decision lay in the ways class-action suits would be severely limited in the future. But dig a little deeper. In his majority opinion on behalf of the five conservatives on the court, Justice Antonin Scalia found that Wal-Mart could not be held accountable for discrimination in pay and promotions because the plaintiffs lacked “convincing proof of a companywide discriminatory pay and promotion policy.” Then Scalia went one further and offered Wal-Mart, the largest private employer in the country, a virtual guidebook on how to discriminate better: Do it in bulk up and down the chain of command, and make certain to do it at every possible level. As SCOTUSblog’s Lyle Denniston pointed out almost immediately after the decision came down:

For large companies in general, the ruling in Wal-Mart … offered a second message: the bigger the company, the more varied and decentralized its job practices, the less likely it will have to face a class-action claim. Only workers who have a truly common legal claim may sue as a group, the Court majority made clear—and, even that claim will require rigorous proof that every single worker suffered from exactly the same sort of bias. Sample statistics and anecdotes won’t do.

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