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?
Federal and state law make certain assumptions that they are well entitled to make when it comes to stated obvious bias; for instance, the job advertisements in 19th-century Massachusetts: "No Irish need apply." What happens, nevertheless, in a case the Wal-Mart allegations could have turned into? Wal-Mart officially prohibits personnel discrimination. It accords its local managers the latitude that alone keeps decision processes flexible. What that means, to the Unconscious Prejudice Industry, is that things work the opposite way. Yes, they say they don't discriminate. But, of course, they must and do. "Framework analysis" tell us so: one more sign of the general loopiness of modern life.
Evidence? What need has the liberal mind for evidence -- the mind in which the idea of unconscious prejudice was hatched to begin with? The burden of these cases on society grows cumbersome.
First to notice is the cost of litigation. Millions spent on lawyers isn't doing much besides strengthening the second-home industry. Then watch as we become a culture of bleaters into whose heads the alien thought couldn't possibly penetrate: Gee, maybe I just didn't do the job very well!
The whole matter of fairness in hiring and promotion suffers from any public perception that the government alone can save us from the hateful little minds of managers and personnel employees who don't even know how biased they are.
In the Wal-Mart case, the Supreme Court kept things from getting worse -- economically, intellectually, constitutionally than they are at present, but the problem persists and will re-emerge. It's just too easy, and maybe too profitable, to take for granted that mean old white male power brokers did somebody in due to unconscious white male biases (which deserve to cost them big time).
There's another factor. The court majority on "unconscious bias" was 5-4: too narrow for comfort, as the constitutional lawyer in the Oval Office has surely noticed.