In Walmart Stores, Inc. v. Dukes, even more than in most cases, the U.S. Supreme Court stands at a crossroads.  Or to be more precise, in Dukes, the Court stands at several crossroads.  There’s little doubt that whichever path it chooses is going to have a big impact on some aspect of federal civil litigation.  The real question is:  Which one? 

Here’s why it’s so hard to figure out where Dukes is going.  The Court generally grants certiorari (i.e., agrees to hear an appeal), for one of a few reasons.  Most commonly, the Court hears cases to resolve conflicts among the different circuits of the courts of appeals about a legal issue.  The Court will occasionally hear a case that doesn’t involve circuit conflicts if it considers the case to be of great public importance (e.g., Bush v. Gore).  Very rarely, the Court takes cases when neither factor is present, but it wants to overrule its own prior precedent.  Only the justices and their clerks know what they wanted to do when agreed to hear Dukes, but it is a case that could fit into any of these categories.

Looking at the questions the Court granted certiorari to decide only adds to the confusion.  The Dukes litigation in the Ninth Circuit (first before a panel, then before the en banc court) focused on two issues.  First, there’d been a sea change in circuit precedent on plaintiffs’ burden of proof for class certification.  The 2nd, 3rd and 7th Circuits had recently abandoned the principle that a class should be certified so long as the plaintiff presents some evidence to support each of the requirements for certification under Rule 23(a) and (b), holding instead that a class should be certified only if the plaintiff puts on stronger evidence than the defendant comes up with.  The novelty of those decisions was that judges now have to resolve disputed fact issues at class certification that would normally be for a jury to resolve at trial.  That issue impacts every class action case, and Dukes was thought to be the 9th Circuit’s chance to weigh in on it.  

The second main issue impacts only a small number of class actions, primarily involving civil rights and/or employment discrimination.  The issue is:  In what circumstances can a class be certified under Rule 23(b)(2) — which is easier to meet than the more commonly used Rule 23(b)(3)?  

The en banc 9th Circuit declined to disagree with the decisions of other circuits on the first issue. It acknowledged slight tension with the 5th Circuit on the second issue, but adopted a nebulous “totality of the circumstances” test, making it harder to see a true circuit conflict even on that issue. 

In its certiorari petition, Walmart identified the Rule 23(b)(2) issue as the primary question for the Court to address, but included a second, broad catch-all issue, encompassing, among other issues, the 9th Circuit’s interpretation of the burden of proof.

The Court agreed to decide Walmart’s first issue but not its second one, so it appeared the Court wanted to decide this conflict issue. But the Court then added its own second question, which was broad and vague as to the precise issue it wanted to look at:  “whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).”  It’s anyone’s guess what the Court meant by that, because Rule 23(a) contains 4 separate elements, and there are many different potential problems with proving each of them.  Was the Court’s focus on “the class certification ordered” in this particular case an indication that the Court viewed this case as one of great public importance?  The fact that hundreds of thousands of female employees were suing such a large company certainly makes the case newsworthy, but did that put it on the same footing as, say, Bush v. Gore?  Or was the Court alluding to the burden of proof issue, perhaps seeing a conflict?

Oral argument last week may have shed some light on where the Court is really going.  Having looked over the oral argument transcript, my guess is the Court is more interested in looking at whether to overrule its prior precedent.  As Lyle at SCOTUSBLOG, and press accounts have highlighted, the Court seemed most concerned with the “pattern or practice” (proving a pattern or practice required to for liability under the section of Title VII the plaintiffs sued under) the plaintiffs said they could prove on a common basis, even though the class members worked in different stores and had different managers.  They argued that Walmart’s pattern or practice was to give local hiring decision-makers’ “excessive subjectivity.”  In other words, Walmart would be responsible for discrimination by hiring decision-makers at the store level because it did not make managers use objective criteria in their decisions.  

Justice Kennedy, among others, didn’t seem enamored with that theory.  But as the plaintiffs pointed out, they didn’t invent it.  The Supreme Court did.  International Brotherhood of Teamsters v. United States was not a class action.  But the government (the plaintiff) in that case faced some of the same problems the Dukes plaintiffs faced:  How do you prove a that a large employer with many locations, and different individuals making hiring and promotion decisions at each location, subjected all affected employees to the same discriminatory pattern or practice? 

Perhaps based on the conviction that the need to root out corporate cultures that fostered unspoken gender biases outweighed other considerations, the Court in Teamsters endorsed the idea that plaintiffs can prove liability for all employees in their affected class by showing that the central office’s policy and practice of allowing local managers to use excessive subjectivity enabled biased decision-making, so long as they also prove that wide scale disparities exist throughout the company that can’t be explained by innocent factors.

The Dukes plaintiffs latched onto that theory, but unfortunately for them, the litigation is pending in 2011, not 1977 (when Teamsters was decided), and the Court’s outlook has changed quite a bit in the intervening 34 years. 

And at least some of the justices appear ready to put Teamsters to bed, or at least interpret it as having an extremely narrow application that doesn’t include the Dukes facts.  A decision to go in that direction would obviously be significant to Walmart and the members of the Dukes class.  And it would probably impact similar gender bias suits against large employers. 

Some, like Professor Kent Greenfield argue that overruling or marginalizing Teamsters could adversely affect workplace equality, but I’ll leave social and political analysis to others. 

Whatever its social import, a decision focused on the Teamsters theory could actually have a much smaller affect on federal court litigation as a whole.  Such a decision would impact a much  narrower class of cases than a decision on the burden of proof for class certification or the scope of cases that can be certified under Rule 23(b)(2).