The Supreme Court's Walmart Bias Case: More Procedural Games?

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Mel Evans / AP

A Walmart store in Washington Township, N.J. The Supreme Court has said it will consider whether to keep alive the largest employment-discrimination lawsuit in U.S. history

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Businesses, not surprisingly, hate big class-action lawsuits. The cost of defending them can be so large that there is pressure to settle. And if the plaintiffs win, the damage awards can be stratospheric. A Who's Who of Big Business has lined up behind Walmart, including Altria Group, United Parcel Service, PepsiCo and General Electric.

And they may well have a sympathetic audience at the Supreme Court. Its decision to take the Walmart case fits into a larger pattern. Again and again, the court's conservative majority has used legal technicalities to slam the courthouse door on litigants who have valid civil rights and civil-liberties claims.

In 2007, the court threw out Lilly Ledbetter's lawsuit charging that Goodyear Tire & Rubber paid her less than it paid male managers. By a 5-to-4 vote, the court ruled that she had missed the deadline for filing — although at the time the court said she should have filed, she had no way of knowing she was being underpaid. The decision was such a wild distortion of what the civil rights law actually said that Congress quickly passed a new law overturning the court's bizarre interpretation.

That same year, when a group of citizens charged that President George W. Bush's White House office on faith-based initiatives violated the separation of church and state, the Supreme Court — again by a 5-to-4 vote — said the citizens did not have standing to challenge the alleged constitutional violation. Their interest, as mere taxpayers, was too minor, the court insisted, to give them a legitimate stake in challenging the program. The court's perverse interpretation of standing rules meant that there was no way for citizens to ensure that the First Amendment's bar on funding religion was being respected.

When it comes to the law, small technical rules can make a big difference. For plaintiffs like Ledbetter, they can mean the difference between getting a fair hearing and not getting one. For inmates on death row, how the rules are interpreted can literally mean the difference between life and death.

If the Supreme Court overrules the class-action decision in the Walmart case, it seems inevitable that many women employees and former employees will never get a chance to bring their own claims. If Walmart did not discriminate — Walmart denies the charges, and nothing has been proven yet — it should win its case. But if it did, it should not be able to prevail by making it too expensive and too difficult for many of the women to get their day in court.

Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board. Case Study, his legal column for TIME.com, appears every Wednesday."

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