I am not an expert in class action certifications, but it seems that Justice Kennedy will be the deciding vote in Wal-Mart v. Dukes. This looks like a 5-4 reverse.
Kennedy seems to have also hinted how he will decide the case. He asked questions to both Petitioner and Respondent that focused on the same point. He sought to use Monell’s standard that permits 1983 liability if the plaintiff can show a policy, or pattern or practice, of deliberate indifference (discussed today in Connick v. Thompson) to determine whether a class action certification for discrimination was proper.
JUSTICEKENNEDY: The Chief Justice’s21question reminds me somewhat of our rule in Monell under221983: A city is not liable for a — a constitutional23violation unless it has a policy. Would you think that24we could use that as an analogue to determine whether ornot there is a common question here?
MR. BOUTROUS: Yes, Your Honor. I think the2analogue is that if a company had a policy, a general3policy, of discrimination as opposed to here, where it’s4a general policy against discrimination, and it was -inthe words of the Court in Feeney, saw patterns6throughout the company and because of sex, because of7gender, continued to allow the patterns to exist, that8would raise a different question.9
JUSTICE KENNEDY: Suppose, following theMonell analogue, there’s — it’s a — there’s a showing11of deliberate indifference to the violation. Would that12be a policy?
Later he asked Respondent about Wal-Mart’s policy:
JUSTICE KENNEDY: It’s not clear to me:14What is the unlawful policy that Wal-Mart has adopted,under your theory of the case?
Kennedy also sought to clarify Respondent’s answer to focus on whether he was referring to a pattern or practice:
MR. SELLERS: That — that is correct, but8it — it — it is the paradigm we use for determining9what you need to establish a pattern or practice ofdiscrimination.11
JUSTICE KENNEDY: Pattern or practice,12that’s correct. Help me, if you can, with this. Let’s -14let’s suppose that experts’ testimony, sociologists andso forth, establish that in industry generally and in16retail industry generally, women still are discriminated17against by a mathematical factor of X. You have a18company that has a very specific policy against19discrimination, and you look at their — the way theiremployees are treatment — are treated, and you find a21disparity by that same mathematical factor X, does that22give you a cause of action?
JUSTICE KENNEDY: Where there’s no24deliberate indifference and a specific policyprohibiting the discrimination, can you still proceed?