Genial enough was the court's unanimous decision not to allow advancement of a sexual discrimination suit against Wal-Mart, inasmuch as the plaintiffs were using the wrong part of the right law. Better still was the conservative bloc's rejection of a claim to the effect that Wal-Mart managers might have been allowing stereotypes to influence their personnel decisions, thus engaging in "gender bias" against 200 actual claimants who wished judicial permission to speak for a million and a half female employees.
A University of Illinois-Chicago professor, William Bielby, had cooked up this fragrant theory by using something called "social framework analysis." The reference is to "scientific evidence about gender bias, stereotypes, and the structures and dynamics of gender inequality in organizations."
The inventors of the concept, also academicians, had already accused Bielby of neglecting to research Wal-Mart's actual performance, but it was left to the justices to pour this malodorous broth down the kitchen sink. Where was the proof of anything that Wal-Mart had done wrong? The 5-4 majority wished to know. There wasn't any, apart from a small collection of anecdotes. Everything else was inferential. It had to be so, because it had to be so, because ...
The Unconscious Prejudice Industry, which imputes bias to people on the basis of sex or race, has no notion of closing down and going away. For one thing, class action suits employ too many plaintiff's lawyers shopping for the next judicial bonanza. These folks get no discouragement from Justice Ruth Bader Ginsburg, who wrote in the Wal-Mart case that "Managers, like all humankind, may be prey to biases of which they are unaware."
Well, yes, as a matter of fact. You might even say the same of Supreme Court justices. Does this mean we should bar Justice Ginsburg from sitting on cases with plaintiffs or defendants against whom she might nurture some bias kept carefully on her person? For that matter, what about the rest of the courts? What about you? What about me?