Technically, the litigants in the case scheduled for argument before the Supreme Court on Tuesday are Wal-Mart Stores and some 1 million current and former female employees who allege in a class action that they have been discriminated against. But all eyes will be on the justices themselves.
Will the “conservatives” on the court reflexively side with big corporate interests, as some liberal activists fear? Or, as some conservatives worry, will the “liberals” on the court get their way and craft a decision that gives the “little guy” a boost against the corporate behemoth?
It’s easy in cases such as this one to try to caricature justices as political players in search of a desired result. Easy, but wrong, as a recent spate of decisions shows.
Within the past few weeks, the Supreme Court, with conservative justices in agreement, rendered decisions that caused corporate America to groan. In one case, the justices sided with an employee who claimed his employer retaliated against him after he made a complaint. In another, they unanimously gave a green light to investors who sued a drugmaker accused of withholding information about serious side effects linked to one of its products. And the court, in a decision written by Chief Justice John G. Roberts Jr., an appointee of George W. Bush, rebuffed AT&T’s argument that it was entitled to “personal privacy” in order to shield certain information from public view. The chief justice, with tongue firmly planted in cheek, wrote that the court hoped “AT&T would not take it personally.”
An analysis by Supreme Court advocate Thomas Goldstein on SCOTUSblog also chips away at the notion that justices rule in lockstep with their political preferences and are constantly at each other’s throats. In the 2010 essay “Everything you read about the Supreme Court is wrong,” Mr. Goldstein notes that 5-to-4 splits were rendered in less than 20 percent of the cases during the court’s 2009 term — the most recent term for which full statistics are available. During the ’09 term, “roughly half the decisions were nine to zero.”
Justices are not devoid of points of view, and their “judicial philosophies” help steer them to certain results. There will be cases in which the justices appear to split along ideological lines, and the Wal-Mart case may very well be one of them. Debate and disagreement over the merits of a decision are understandable; not so painting justices as mere political hacks camouflaged in judicial robes.