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Today, the Supreme Court will hear arguments in a case in which millions of women have been trying to sue Wal-Mart for sex discrimination, ranging from “unequal pay, sexist remarks and insurmountable obstacles to promotion.” Unsurprisingly, throughout the almost 10 year legal process of the case, the U.S. Chamber has been one of Wal-Mart’s most steadfast supporters, having filed 7 amicus briefs favoring the corporation in the Wal-Mart v. Dukes case. Although the Chamber, and much of the mainstream media, will continue focusing on the fact that the Supreme Court’s particular decision involves a technical procedural issue concerning whether a case can go forward as a class action and not about “discrimination” per se, we already know just where the Chamber stands on “unequal pay” and “sexist remarks” – in favor of and willfully pedaling both.
Putting aside the implications of discrimination and advantage-taking that could be allowed by a corporation’s wrongdoing that is “too-big-to-sue”, the Alliance for Justice made a compelling observation that a win for Wal-Mart would certainly bolster a symbolic shift of the Roberts’ Supreme Court in favor of corporate interests, with the U.S. Chamber’s influence over the Court defining that shift:
Since 1953, corporate interests have won just 42 percent of the time in the Supreme Court, but that percentage has jumped to 61 percent in the Roberts Court, with three of the seven most pro-corporate terms occurring during Chief Justice Roberts’ first five years. Just last term, the Roberts Court ruled in favor of the side that the U.S. Chamber of Commerce supported in 13 of 16 cases. The U.S. Chamber, and a wide array of other large corporate interests, have lined up on Wal-Mart’s side in this case.”
That’s right – a Supreme Court victory by the largest corporation in the world – would reaffirm “the perception…that the court is overly protective of the corporate world,” and solidify the concept that except for the solicitor general, “…no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center,” as Chamber litigator Carter G. Phillips has said.
In August of 2007, NCLC’s Executive Vice President Robin Conrad said in a statement, “This has been our best Supreme Court term in 30 years…We submitted filings in more cases than ever this term, and we won more cases than ever.” It seems as if the Chamber is now claiming the Supreme Court for itself and presumably the major corporations that pay it to do so. After winning the Citizens United case last year, a win for Wal-Mart means that the Chamber will have given large corporations almost unbreakable power over the political, electoral process and the ability to remain unaccountable to their employees for the sake of profit.
The Chamber is right – this is about more than discrimination – it’s about the corporate hijacking of our democracy and an independent federal judiciary.
The Chamber and Wal-Mart: A Corporate Hijacking Of The Supreme Court |
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| By: christysetzer Tuesday March 29, 2011 11:08 am | |
24 Comments
Thanks for the write-up, Christy. I heard last night that the Court will hear the case today, but I had no idea that it’s been ten years coming.
I guess I wouldn’t expect a very narrow ruling, would you? And I’d think we know how we think it will go.
One Justice’s wife is allied with the Chamber, yes? Or was it another right wing organization like Freedom Works? Fuzzy memory here.
Christy, thank you for a great post. I hope this gets front-paged at FDL ASAP.
The stats you note regarding the courts favoritism towards the corporate world under Roberts leadership is an extremely disturbing, systemic problem.
“That’s right – a Supreme Court victory by the largest corporation in the world – would reaffirm “the perception…that the court is overly protective of the corporate world,” and solidify the concept that except for the solicitor general, “…no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center,” as Chamber litigator Carter G. Phillips has said.”
Such a thought is beyond sad and would be “grave”. As you write:
“The Chamber is right – this is about more than discrimination – it’s about the corporate hijacking of our democracy and an independent federal judiciary.”
Hey, mod! Can you get this front-paged? Because it should be. It’s a story of great importance.
How do we figure out the mechanism for this? Who is deciding to take up the cases, and then who’s ear does the Chamber have subsequently? And what do we do with anomalies like the huge contributions given to the ACLU by the Koch brothers and their stance on Citizens United?
Walmart’s respect for its employees, young and old, poor and poorer, people who make enough that they can barely afford to shop with their employer, and most of all, its respect for their employees’ rights to form unions and to bargain collectively in negotiations with the world’s largest employer, is well known. It ranks with big coal’s mine safety record and support for the Clean Air Act.
Yes, thanks for the post on this important issue. It will be interesting to see which way the court goes.
Here’s a link to ABC News story on presentation of the case in the Court today:
http://abcnews.go.com/Politics/supreme-court-justices-leery-walmart-plaintiffs/story?id=13248119
Seems like a fair write-up, though the outlook for a decision favoring the women doesn’t look too good, based on comments the Justices made.
Here’s a snippet:
“Sellers said Walmart has a “very strong corporate culture” and that it allows its managers “broad discretion,” which he called the “Walmart way.”
But Justice Anthony Kennedy challenged Sellers, saying, “It’s not clear to me what the unlawful policy that Walmart has adopted, under your theory of the case.
“Your complaint faces in two directions. Number one, you said this is a culture where … headquarters knows everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion,” he said.
Justice Antonin Scalia agreed with Kennedy. “I’m getting whipsawed here,” he said.
“It’s either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.”
Here’s another – Ruth Bader Ginsberg seems sympathetic, but is also having issues:
“Justice Ruth Bader Ginsburg asked Boutrous whether a company that has gotten reports “month after month” showing that women are disproportionately passed over for promotion has any responsibility to say, “Is gender discrimination at work? And if it is, isn’t there an obligation to stop it?”
But she also seemed concerned about how such a sprawling case could be managed by a judge if the women were allowed to proceed as a class. She asked Sellers how a judge could deal with an issue such as claims for back pay.
“But what seems to me is a very serious problem in this case is: How do you work out the back pay?” she asked.
Meanwhile, Walmart is not missing a trick.
My local CBS station ran a clip of a demonstration outside the Court — Walmart had a female HR exec there speaking. The clip showed the HR exec at the beginning of the clip and one of the original women plaintiffs in the case at the end of the clip.
Some straight-forward explanation from the ABC News story:
“The case stems from a sexual discrimination suit filed in 2001 by six female employees alleging they had been paid less than men in comparable positions in violation of Title VII, the federal law that prohibits sex discrimination. As word spread, dozens and dozens of women joined the suit and a district court ruled the case could go forward on behalf of all similarly situated women.”
I was beside myself with mirth at Wal-Mart’s claim that certifying this class would make the sky fall, because it was so big and litigating against it would be hard work for a company four of whose principal shareholders rank among the top ten richest people in America.
Wal-Mart has defied foreign governments for years in attempts to defeat unionization of any of its operations. It has closed profitable country-wide operations in order to frustrate unionization. It manages one of the globe’s most complex and certainly its most ruthless supply chains. It manages equally complex global treasury functions. It has one of corporate America’s largest and most talented in-house law departments and has access to the best legal minds in the country.
Suffice it to say that Wal-Mart has more than sufficient resources capably to defend against any class of current and former workers that might be certified, while still running a profitable retail business around the globe.
If that class is large – and managing large cases is the purpose of “class actions” – it is an obvious, foreseeable and logical consequence of the scale of Wal-Mart’s business. It is the world’s largest corporate employer.
What Wal-Mart doesn’t want is to allow discovery. That might well yield a Pandora’s Box of formal and informal communications regarding what Sam Walton and his company’s current owners think of its workers, of women and what they should be paid. That’s because Wal-Mart is also one of the world’s most regimented companies. It does everything the same everywhere.
If the items in that Pandora’s Box prove legally actionable in the United States, Wal-Mart may have employment disputes around the world, not just with a large number of its former and current women employees in America.
If Wal-Mart is held to owe back pay, then almost regardless of the amounts owed each person, the total will be large. Those costs would relate only to those certified as being part of the class. They would hit the Walton billionaires in the pocket book, something they seldom take kindly to.
Even harder for them to deal with would be changes in its corporate culture that would be required to prevent future discrimination. That’s more than adjusting pay scales; it would require adjusting how it promotes and manages. For such a regimented company, that would be management hell.
Those consequences are among the reasons Wal-Mart will fight this case and its aftermath until Jarndyce v. Jarndyce is finally settled.
Wal-Mart certainly has a strong corporate culture. The leeway or discretion it allows various levels of management is open to question. The metes and bounds of that discretion are reportedly very tightly controlled. They are also indirectly controlled through other management practices and demands on managers.
This is a company that once routinely demanded large amounts of overtime, but refused to pay for it. It will overwhelm a supplier with orders until it is virtually the only customer. Having achieve a monopoly relationship, it will then drop that supplier in a heartbeat if its prices aren’t ratcheted down continuously to the point of breaking bone.
Thanks for all the great insight! You certainly fill the picture in…
Will the Supreme Court Justices recognize the fallacy in ruling against this class action because the class is too large?
You hit the nail on the head…corporate interests are at issue here, as much as employment discrimination against women.
Who is Jarndyce v Jarndyce?
Oh, from Wikipedia:
Jarndyce and Jarndyce is a fictional court case in Chancery in the novel Bleak House by Charles Dickens.
The case concerns the fate of a large inheritance. It has dragged on for many generations prior to the action of the novel, so that, by the time it is resolved late in the narrative, legal costs have devoured the entire estate. The case is thus a byword for an interminable legal proceeding.
Right, even if the Supreme Court rules against Walmart in this case, it just means the women can pursue a class action that Walmart will fight endlessly. Yes?
If so, then it would be better for us if the Supreme Court votes against the women….let the Court show its colors and step up impeachment activities against Scalia and Thomas.
Jarndyce v. Jarndyce was a fictional case about a huge inheritance in Charles Dickens’ Bleak House. Illustrations here.
The case went on for generations , until a once very large estate was depleted to nothing by lawyers’ fees and court costs. As the Wikipedia entry characterizes it, the reference has become a byword for interminable legal proceedings.
Dickens’ wrote Bleak House in the early 1850′s. His fictional case was based on a similar real ones. Legal reforms in the late 19th and 20th centuries vastly improved proceedings. Before its reforms, the law was no one’s friend and sometimes worked great injustice. It’s a pattern we are beginning to see emerge under our constitutional lawyer president.
What it means to me is that Wal-Mart, for reasons of money and its corporate culture, will fight this case until hell freezes over.
The current case is only about certifying a class of plaintiffs that can sue Wal-Mart. If it loses on that decision the in the Supreme Court, the employment litigation begins.
Wal-Mart will fight each certification decision, each procedural decision, each bit of discovery, each ruling, as if they were existential threats to the company’s existence. It has done exactly that in fighting union drives around the world, and in seeking exemptions to sometimes very pro-labor laws that, like the right to health care, exist in industrialized countries around the world – outside of the United States.
He did tsk tsk the Citizens United decision.
Ha, another instance where he is what?…being a fraud? not following his beliefs? overwhelmed by the responsibilities of the office, or the money flowing into his coffers?
You have it right.
Think about Wal-Mart’s business model. It employs a lot of people, most of them at or around minimum wage, many of whom are what other employers consider “marginal” – the over fifty and sixty, the inexperienced, etc. It sells goods at very low prices and thin margins, but in high volume. Its employees can sometimes barely afford to shop there, but ironically, they and their neighbors increasingly can’t afford to shop anywhere else.
Its prices put traditional retail outlets out of business, tens of thousands of them across America alone. But it generates enough profits that four of the Walton clan are individually listed among the top 10 richest Americans.
Where does the money come from? From its low wages and from treating its suppliers the way Sherman treated Atlanta.
Yes, and Wal-Mart has successfully thwarted attempts to unionizing its workers, which might be the only way to right these wrongs..talk about 19th century conditions!!
Feb. 2005 -
http://www.thedenverchannel.com/money/4231767/detail.html
“The workers at a Wal-Mart Tire & Lube Express voted 17-to-1 not to join the United Food and Commercial Workers union.” …and
“This is just the third union vote ever to occur at a Wal-Mart store in the United States and the second time in two weeks that Wal-Mart workers have rejected the union. In New Castle, Pa., Wal-Mart tire and lube workers rejected the union 17-0 earlier this month.”
NYT editorial 2003:
http://www.thedenverchannel.com/money/4231767/detail.html
“Since 1995, the government has issued at least 60 complaints alleging illegal anti-union activities.” …and
“Wal-Mart may also be driving down costs by using undocumented immigrants. Last month, federal agents raided Wal-Marts in 21 states. Wal-Mart is facing a grand jury investigation, and a civil racketeering class-action filed by cleaners who say they were underpaid when working for contractors hired by Wal-Mart. Wal-Mart insists that it was unaware of its contractors’ practices. But aware or not, it may have helped to deprive legally employable janitors of jobs and adequate pay.
This Wal-Martization of the work force, to which other low-cost, low-pay stores also contribute, threatens to push many Americans into poverty. The first step in countering it is to enforce the law. The government must act more vigorously, and more quickly, when Wal-Mart uses illegal tactics to block union organizing. And Wal-Mart must be made to pay if it exploits undocumented workers.”
Yeah, I guess they have a good legal team.
Sorry, here’s the NYT link
http://www.nytimes.com/2003/11/15/opinion/the-wal-martization-of-america.html
I spent some time working out west as a traveling nurse. I was in a few western states, one of which was New Mexico. I was working in a small town (total population: 19,000) which was primarily Navajo and the “others” who were there to either work for the government in managing the reservation or to sell to the folk working for the feds. I found it of interest that in order to buy almost anything, you had to go to Wal-Marts. There were a few very small groceries in town, and the rest was for things Wal-Marts wouldn’t or couldn’t sell: horses, saddles, hooves, trucks, tractors, plows, Indian goods (Dream Catchers, actual Indian-made goods, etc.) There was a bakery there, and I think a “real” sewing store, which sold a wide selection of cloth, threads, buttons, etc. They survived because Wal-Marts sewing section was anemic. The only other actual business was a newspaper, which was also very anemic.
okay pups this is really simple
ALL WOMEN MUST NOT SHOP AT walmart till things change drastically
dont give em a dime
the MISOGINIST cheap bastards
they need a farmers cooperative,and maybe a gov run px
Alice Walton Says: Let Them Eat Cake
by Jonathan Tasini
Friday 13 of May, 2005
Posted to Front Page Posts
So, what would you do if you were, along with your mommy, the richest woman in the world, but your workers either can’t afford health insurance or have to pay through the nose to get pathetic insurance and, as a matter of policy, your CEO tells the world that your company doesn’t expect its pay to allow workers to provide for their families? Simple answer: if you’re Alice Walton you buy a painting for more than $35 million. I mean, that’s the reaction of a normal human being, isn’t it?
Yes, the tale of the Walton family seems to get even stranger. Buried down in the metro section of the New York Times today is the news that dear Alice–who is tied with dear Mother for the 13th spot on Forbes magazine’s list of the wealthiest people in the world with a mere $18 billion–bought an Asher B. Durand painting called “Kindred Spirits”(hey, don’t feel bad, I had no idea who this Asher person was either). The painting will be displaced in the Walton’s museum which will open in 2009 in Bentonville.
Oddly, even The New York Times seemed to have caught some spiritual vibe that these Waltons are very twisted–this very same day Paul Krugman has a column entitled “Always Low Wages. Always.” His column compares General Motors to Wal-Mart. Krugman points out that Wal-Mart is now the “widely emulated business icon,” replacing GM, which just had its bonds downgraded to junk status.
His thought is not a new one: GM workers could attain a middle-class life style on the wages and benefits the company provided in return for the sweat of the people who turned out their cars; Wal-Mart workers don’t have anywhere near that security. Not everyone is doing poorly at Wal-Mart, Krugman writes: “In 1968, the head of General Motors received about $4 million in today’s dollars – and that was considered extravagant. But last year Scott Lee Jr., Wal-Mart’s chief executive, was paid $17.5 million. That is, every two weeks Mr. Lee was paid about as much as his average employee will earn in a lifetime.”
http://www.workinglife.org/blogs/view_post.php?content_id=2167
Walmart around here charges TOP DOLLAR
I think it’s time for these elite white men to find out what sexism and misogyny really feel like.
That’s an even better idea than mine that these elite white men should find out what sexism and misogyny really feel like.
Clearly, women are still considered to be nothing more than chattel.