The Court denied cert in another one of Ted Frank’s Center for Class Action Fairness petitions, Martin v. Blessing, but Justice Alito did issue a statement on denial of cert.

The petition in this case challenges a highly unusual practice followed by one District Court Judge in assessing the adequacy of counsel in class actions. This judge insists that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of rele­ vant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.

Justice Alito avoids the constitutional issue, and would resolve it based on Rule 23(g):

Based on the materials now before us, I am hard­ pressed to see any ground on which Judge Baer’s practice can be defended. This Court has often stressed that “[r]acial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.” Edmonson v. Leesville Concrete Co., 500 U. S. 614, 630 (1991). Court­ approved discrimination based on gender is similarly objectionable, and therefore it is doubtful that the practice in question could survive a constitutional challenge. Before reaching this constitutional question, however, a court would have to consider whether the challenged practice can be reconciled with Rule 23(g), which carefully regulates the appointment of class counsel.

Alito poses several hypos, that challenge the essence of the diversity rationale:

Based on the materials now before us, I am hard­ pressed to see any ground on which Judge Baer’s practice can be defended. This Court has often stressed that “[r]acial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.” Edmonson v. Leesville Concrete Co., 500 U. S. 614, 630 (1991). Court­ approved discrimination based on gender is similarly objectionable, and therefore it is doubtful that the practice in question could survive a constitutional challenge. Before reaching this constitutional question, however, a court would have to consider whether the challenged practice can be reconciled with Rule 23(g), which carefully regulates the appointment of class counsel. be proper for a district judge to favor law firms with a high percentage of male attorneys? Or if the class consisted of persons who had undergone treatment for breast cancer, would it be permissible for a court to favor firms with a high percentage of female lawyers? In some cases, the members of a class may be significantly more affluent than the general population. (A class consisting of the purchasers of stock may be an example.) To the extent that affluence correlates with race, would it be proper for a district judge in such a case to favor law firms with rela­ tively low minority representation?

Alito closes by saying, “Don’t do it again or else we will reverse yo ass.” Well, he didn’t say that, but close enough.

Unlike the courts of appeals, we are not a court of error correction, and thus I do not disagree with the Court’s refusal to review the singular policy at issue here. I stress, however, that the “denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certio­ rari). If the challenged appointment practice continues and is not addressed by the Court of Appeals, future re­ view may be warranted.