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A story is only “news” if people want to read it, or listen to a newscaster rant and rave about it. If the headline proclaimed “MOTHER EXPOSES CHILD IN SHOPPING MALL” you would likely be interested. If the headline read “Mother Changes Baby’s Diaper in Restroom of Shopping Mall” we might laugh, but few people would care to open the article and read it. Yesterday the internet was filled with headline news announcing that the Supreme Court rejected a gender-discrimination case. Perhaps the headline should have read, “More Stupid Lawyers, Waste Our Judicial Resources in an Effort to Become Rich.”
The case is Wal-Mart v. Dukes. Current and former Wal-Mart employees sought judgment against the company for injunctive (meaning an order to get somebody to stop doing something), declaratory relief (asking the court to issue a declaration of some fact), punitive damages (money to punish Wal-Mart), and back pay, on behalf of themselves and a nationwide class of some 1.5 million female employees, because of Wal-Mart’s alleged discrimination against women in violation of Title VII. The District Court (which is the trial court) certified the class, finding that respondents satisfied Federal Rule of Civil Procedure 23(a), and Rule 23(b)(2)’s. The Ninth Circuit Court of Appeals agreed. The United States Supreme Court did not. The Supreme Court simply ruled that the form of the case,being a class action,was not an appropriate method to address this grievance. Specifically the Court ruled that certification of the class was not consistent with Rule 23(a) of the Federal Rules of Civil Procedure. The Court specifically explained that its ruling did not prevent the Plaintiff, Betty Dukes from pursuing her claim against Wal-Mart as a member of “class”. Thus the decision of the court related to the notion of what is an appropriate class to bring a suit. In this particular case the class was gargantuan. Here are the facts:
Wal-Mart is the nation’s largest private employer. At the time of class certification (in 2004), Wal-Mart’s U.S. retail operations comprised 7 divisions, 41 regions, 400 districts, 3,400 stores, and more than 1,000,000 employees.
Each store employed 80 to 500 people, with hourly employees assigned to 53 departments in 170 different job classifications.
Wal-Mart’s company-wide policy, then and now, expressly bars discrimination based on sex. “Wal-Mart has earned national diversity awards and its executives discuss diversity and include it in company handbooks and trainings. The company has diversity goals, performance assessments, and penalties for EEO violations.” When the complaint was filed in 2001, individual store managers had “substantial discretion in making salary decisions for hourly employees in their respective stores” and “promotion decisions for in-store employees.”
Only three of the plaintiffs were specifically identified in the suit. They worked at different stores, at different times, in different positions, for different managers. They were promoted to (and demoted from) different jobs, disciplined for different offenses, paid different amounts for performing different jobs, applied for different management training opportunities (or not), and kept working (or not) for different reasons.
Rule 23 of the Federal Rule explains the requirements of a “class”. Among other things in order for the Court to certify a group of people as a “class” there must be a showing that…(2) there are questions of law or fact common to the class, and (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class . In this case the “class” included thousands of women that were as diverse as the ocean. To allow such a “class certification” would have resulted in a case that would have been impossible for the court or jury to consider. The members of the “class” were not people who worked in the same positions, or under the same supervisor, in the same store, or even people who worked during the same time period.
This was a case of lawyers trying to get rich. It was the lawyers representing the would-be class who would receive a huge recovery and the hundreds of thousands of female employees of Wal-Mart would likely receive nothing. In such a class action suit the members of the class are required to pay the attorneys for their expenses and fees first, and there would be so many women in the class that they would receive a pittance. The women who may have actually been discriminated against would likely not receive appropriate compensation, and others who were not discriminated against would receive money that was not deserved.
Moreover this case was a victory for the United States’ economy. Imagine the cost to U.S. companies of defending a suit of this magnitude. Our largest employer would likely have been bankrupt from the legal fees of such a case. The U.S. Chamber of Commerce filed a brief explaining that allowing the class-action suit to go forward “would bury American businesses in abusive class-action lawsuits to the detriment of consumers, the U.S. economy and the judicial system itself.” The U.S. Supreme Court issued a unanimous opinion in this case. As diverse as the Justices are in their views, when an opinion is unanimous, you can rest assured that there is a pretty good reason for their decision. This was a case that had nothing to do with discrimination, and everything to do with greedy lawyers.
In one of the most famous quotes of Justice Oliver Wendell Holmes Jr. of the US Supreme Court, in the Schwimmer case, he said:
“If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”
This quote summarizes the reason the Supreme Court ruled as it did in the Snyder case. If the majority of people agreed with everything everybody said, then there would be no need for a Constitutional Amendment to guarantee “free speech”.
Sarah Palin tweeted this comment from her blackberry:
Common sense & decency absent as wacko “church” allowed hate msgs spewed@ soldiers’ funerals but we can’t invoke God’s name in public square
The absurdity and the stupidity of her comments are only rivaled by her suggestions that we should build dikes to solve the Gulf Oil Spill or that we have “North Korean Allies”. A few observations are significant, even for those of average intelligence, and even if you never attended law school.
1. Constitutional Law is the most complicated and challenging of all courses offered in law school. As an example, Howard University Law School requires 6 hours of Constitutional Law credits, which is more than any other course, including contracts, property, torts, and civil procedure.
Most people who had never taken a Constitutional Law Class would be hesitant to attack the United States Supreme Court for any decision, without careful consideration. Sarah Palin lacks the insight to appreciate just how foolish she appears. She commented from her blackberry as soon as the Court Ruled. Does anyone believe that Palin even read the 15 page opinion, the 3 page concurring opinion, and the 14 page dissent on her Blackberry?
2. Nine of ten U.S. Supreme Court Justices agreed that the people of the Westboro Church had the right to protest in the way that they did. None of the Justices based their decisions on the basis of “common sense” and “decency”. Their decision was based on the Constitution itself, and a careful consideration of decades of case law.
3. In some form of twisted logic Palin contrasts the right of free speech to what she suggests is a limitation of invoking “God’s name in public square.” If she had read the opinion of the Supreme Court in the Snyder v. Phelps case she would have known that it was a church protesting, and they were advocating their religious beliefs. If she had even seen the pictures of the protesters she would have realized that they were invoking God’s name in a public place.
After calling Muslim Americans to “refudiate” their freedom of religion she tweeted the Dr. Laura’s “1st Amendment rights ceased 2exist.”
During the 2008 campaign Palin suggested that her First Amendment Right had been challenged when she said:
“If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”
Then in May 2009, Palin offered another rant:
“I can relate as a liberal target myself…I respect Carrie for standing strong and staying true to herself, and for not letting those who disagree with her deny her protection under the nation’s First Amendment Rights. Our Constitution protects us all — not just those who agree with the far left.”
Two months later, Palin’s comments regarding the First Amendment were directed at David Letterman when she said:
“Letterman certainly has the right to ‘joke’ about whatever he wants to, and thankfully we have the right to express our reaction. This is all thanks to our U.S. Military women and men putting their lives on the line for us to secure America’s Right to Free Speech – in this case, may that right be used to promote equality and respect.”
Thus it appears that Palin’s attitude is that First Amendment Rights should extend to only those who share her views. When various bloggers and media outlets published reports that the Alaska Governor might be the subject of a criminal investigation, Sarah Palin threatened to sue.
So what is the Snyder v. Phelps case? This First Amendment case involves members of a church who chose to protest in a public place to demonstrate their belief that God kills soldiers who serve in the US Military because of the military’s willingness to allow homosexuals to serve, and all Catholic churches are evil because of the child-molestation cases associated with the Catholic Church. A jury in Maryland awarded over $10,000,000.00 to the parents of a particular soldier killed in Iraq for mental anguish caused by the protesters. The facts of the case demonstrated that the protesters were in compliance with all city ordinances and instructions of local law enforcement and that they were located 1000 feet from the church where the funeral was being held. There was no yelling, no profanity, and they did not continue the protesting at the cemetery. As strongly as I disagree with the message of this group, I understand that they had the Constitutional Right to demonstrate as they did.
The First Amendment of the US Constitution provides:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In considering this case the United States Supreme Court explained:
“The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
“That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.”
“Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”
“Speech deals with matters of public concern when it can“be fairly considered as relating to any matter of political, social, or other concern to the community,”
“—the political and moral conduct of the United
“States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro’s position on those issues,”
“Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protesters was not unruly; there was no shouting, profanity, or violence.”
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case. “
Finally it is worth noting that Palin has repeatedly advocated less involvement of the Federal Government, and advocated the need for the Federal Government to allow states more freedom to regulate their citizens. Before she resigned as Governor, she signed a resolution:
“Be it resolved that the Alaska State Legislature hereby claims sovereignty for the state under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.
Be it further resolved that this resolution serves as Notice and Demand to the federal government to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.”
After the Snyder case was filed the state of Maryland enacted laws restricting picketing of funerals. That law was not at issue in the case before the Court, and the Supreme Court specifically explained that they were not passing judgment on that law since it was not in effect at the time. The Court did explain that states were allowed to restrict free speech, so long as the restrictions were reasonable in time, place, and manner.
Two conclusions are obvious. First, the U.S. Constitution protects the rights of all citizens of the United States, especially when their opinions are minority views. The second is that the states of Alaska, and Arizona should consider restricting the use of a Blackberry by Sarah Palin, as that restriction would surely be deemed “reasonable.”