The Supreme Court just agreed to hear what may be one of the most important business cases of the term, Dukes v. Wal-Mart Stores. This suit was first filed in 2001 by six women in federal court. The issue at this point is whether the courts can certify the biggest class-action suit in American history; as many as 1.6 million current and former Wal-Mart employees want to combine their claims in a single suit alleging pay and promotion discrimination. Wal-Mart responds that the plaintiffs in this case worked in 3,400 different stores in 170 job classifications, and allowing them to bundle all their disparate claims together would create a class so large as to be unworkable. The only issue the court will decide this spring is whether the class can be certified, not the merits of the discrimination claims.  Last spring the 9th Circuit Court of Appeals decided in a fractious 6-5 vote to allow the suit to proceed as a class-action.

The six plaintiffs in the suit claim that despite the enormous size of the class, Wal-Mart’s decision-makers determine pay and promotion based on a rigid and highly centralized “strong corporate culture that includes gender stereotyping.” Their claim is that women constitute more than 70 percent of Wal-Mart's hourly workforce but less than one-third of salaried management. They seek back pay, punitive damages, and changes to Wal-Mart’s hiring and promotions policies. Wal-Mart’s liability may be in the billions of dollars. Aside from the size of the class, Wal-Mart argues that the lower courts used the wrong standards to certify the class.

This is a high-stakes appeal that has elicited strong responses from the Chamber of Commerce on one hand, and those who worry about the need for class-action suits to protect worker rights on the other. It’s going to garner an enormous amount of interest from those who contend that big business never loses at the Roberts court and that workers can't catch a break. It may also prove an early litmus test for whether the presence of three women at the high court will in any way shape the debate about gender discrimination.

Photograph of Wal-Mart exterior from Wikimedia Commons.

Tags: Supreme Court, Wal-Mart

A new report says that the past decade has brought an enormous increase in lawsuits against employers for discrimination on the basis of family responsibilities. A quieter, dramatic example of the child-care crisis is a recent postponement of the prison sentence of a mother of three, granted solely because she has no child care.

Janira Bueno was convicted in New York federal court, after a guilty plea to multiple fraud counts in a tax-fraud conspiracy, along with 11 other defendants (including her husband). She’ll serve her two-year prison sentence eventually, but has up to three years or even longer to find suitable care for her three children, the youngest of whom is two.

Judge Harold Baer decided that the “extraordinary circumstances” related to the care of Bueno’s children and the lack of an available caregiver demanded an unusual solution in setting the terms of Bueno’s sentence. In a compassionate opinion filed last week, Judge Baer wrote that he sought to balance the need to sentence Bueno appropriately with “the need to ensure that innocent children are properly cared for and do not become wards of the state, or in foster care.” He cited evidence of her devotion to her children and her lack of previous criminal record as factors in his decision. The youngest child will be kindergarten-aged by the time Bueno likely will have to surrender; the oldest of the three will be a teenager. From a child-development perspective, the adjournment of her sentence could, obviously, have (or avoid) dramatic effects on the kids. Self-described "sentencing geeks" find this kind of move interesting because it illustrates the effects of recent Supreme Court decisions that have given sentencing judges more flexibility in abiding by the notorious federal sentencing guidelines. The Bueno decision relies more on logic and on practical considerations than on a technical formula.

Too bad for workers—and for Bueno—that prison terms aren’t as easy to lose as jobs. Federal law forces employers to keep jobs available (sort of, if workers qualify, if and if and if) for a luxurious 12 weeks while you sort out child care and other family-related responsibilities. After that, better catch a windfall or find someone to watch the kids. The data reported by the Center for WorkLife Law clangs the bell: Lawsuits against employers on the basis of “family responsibility discrimination” are up 400 percent in the last 10 years, even while overall employment discrimination lawsuits decreased.

Herein lies the peculiarity of the outcome of the case of Janira Bueno. Meet and right that her kids’ welfare determined the terms of her sentence. But isn’t it weird that the American way of child care (expensive, inaccessible, both, or worse) is so gnarled that a federal judge has to tinker with details when the goal is to make sure a convict serves her time? Prison service shouldn’t be the call to arms that gets us to a reasonable solution for families who want to 1) stay employed and 2) secure care for their children. I guess, with a groan and lots of salt, we’re to ask W.W.S.D. (what would Sweden do)?

Photograph of children by Karim Sahib/Getty Images.

Tags: Bueno, childcare, law, prison, sentences, Supreme Court, workplace equality

I’m not enough of a legal mind to weigh in on Elena Kagan’s judicial qualifications for the Supreme Court and, well, sitting here in my home office in Gap shorts and a T-shirt, I’m probably equally unqualified to weigh in on her sartorial choices. But I have to agree with Liza that if I were subject to a thumping from Robin Givhan and others that I, too, would probably hit the nearest Nordstorm and ask for a personal stopper, stat.

I can’t help but wonder, though: Are we turning Kagan into D.C.’s own Susan Boyle? While it’s nothing new to pick apart a political figure’s wardrobe—we gnashed our teeth over young Hillary Clinton’s headband and older Hillary Clinton’s pantsuits, and let us never forget the Sarah Palin before and after—it feels different this time. Maybe it’s because we expect politicians to have a certain image and hope that our more serious officials—like judges—aren’t held to the same standard. Or maybe it’s because we wonder if Kagan is glamming it up in response not only to the charges of frumpiness but what “frumpiness” stands for (along with “softball playing” and “unmarried”).

Which is why, even though I do like Kagan’s spiffy new suit and can relate to wanting to have something flattering and feminine, I half-wish she’d ignored the silliness of Givhan’s critique.

Photograph of Susan Boyle by Jeff J Mitchell/Getty Images; Photograph of Elena Kagan by Mark Wilson/Getty Images.

Tags: Elena Kagan, Robin Givhan and Elena Kagan, Supreme Court

I agree with Jess, Dahlia and others that Elena Kagan is a screen onto which we project our anxieties about work, ambition, motherhood, and marriage. She may (or may not) be unusual in the intensity of her ambition, but she seems relevant to many women in that she raises anew the decades-old discussion over work, family, and the difficulty of pursuing both. And I think Lisa Belkin's piece yesterday in the New York Times Magazine is terrific. In it she explored the ironic fact that the first two female Supreme Court justices were able to fashion lives that included husbands and children, despite (or because of) their having risen to prominence in an era hostile to female achievement; whereas Sonia Sotomayor and Kagan came of age in an era during which there were so many spurs to women's ambition, so many opportunities, that women, paradoxically, had less freedom—or may have felt they did—to raise families as they were pursuing their professional rise.

Increasingly, though, what interests me about Kagan is not her parental or marital status or, God knows, her sexual orientation. It's her age.

Rather, it's her age and how it's perceived. Throughout the discussions of her nomination, the other common trope—the thing people are constantly observing and commenting upon—is how young Kagan is. Why, she's only 50! If confirmed, she will be the youngest sitting justice on the bench. Similar things were said about Chief Justice John Roberts when he was appointed. A veritable baby! A toddler on a panel where the average age is close to 70. Better find out what she really thinks about things—if you can—because she's likely to be with us for a long, long time. At 50—the point is made—Kagan has, what, 20 years to exert her influence on American jurisprudence. Or, more likely, 30. Maybe even 40. Why, it's as if her professional career is just getting started.

To be 50 and feel as though you have a rich and productive working life ahead of you, to feel as though you have something relevant—not only intelligence but wisdom and experience—to offer your profession. How many 50-year-old Americans can say the same at this moment?

Not many. For fiftysomethings and older workers who lost jobs during this lingering economic crisis, returning to the workforce is much, much harder than for workers belonging to younger cohorts. And for those still lucky enough to have jobs, there remains the uneasy, nagging feeling that your paycheck is too high, your skills too outdated, for you to be truly wanted in your workplace. Fifty tends to be the age at which workers qualify for a buyout when companies offer them, as plenty of companies having been doing in the recent past. Some workers are happy to take these offers; others (and I know them—journalism has been hard-hit) feel that their career abruptly ended 10 or 15 years before they thought it would. Even worse is a layoff or, of course, the abrupt disappearance of your company. Nationwide, I think it's fair to say, the message is that employers often would prefer to off-load fiftysomething workers—with their salary expectations, their dependents, their mortgages, their need to pay college tuition—in order to replace them with cheaper, Web-savvy twentysomethings. And it's worse, of course, for industrial workers. The economic crisis, combined with the decline and relocation abroad of the industrial sector and the full flowering of the information age have made many fiftysomething and sixtysomething Americans feel that they are in the precise opposite position of Elena Kagan: They have few to no options at all. What many workers hear is that, at 50, they are too expensive, too insufficiently skilled in modern technology; they have the wrong degrees or, worse, no degree at all. Anachronisms. Woolly mammoths. Sliding into oblivion.

At 50, Elena Kagan is where a person really should be: reaching a new level in her career, a whole new set of opportunities and challenges to which she can apply her formidable energy, learning, and wisdom, stretch herself to a new level in a venue where her skills and talents matter more than ever. This is a stark difference from the situation of so many American fiftysomethings, fighting fears of layoffs, a sense of obsolescence, anxiety at not having the skills necessary to survive in a new economy, and not much of an administration-led push to train them, that I'm aware of. People wonder whether Kagan, not having children, can understand the woes of "ordinary people." I would argue that it is in their extraordinary job security, not so much their sexual orientation or marital or parental status, that the Supreme Court justices are most at variance with the way ordinary people, just now, live.

Photograph of Elena Kagan by Alex Wong/Getty Images.

Tags: age, buyouts, Elena Kagan, layoffs, recession, Supreme Court, unemployment

Despite Elena Kagan’s past criticism of confirmation theater, her recent comments indicate that she will hew to the same safe script and deliver the kind of nonprejudicial pablum on cultural hot buttons like abortion and gay marriage we’ve come to expect at Supreme Court hearings. Fortunately, the one question for which we can expect some degree of candor is one that touches on the institutional integrity of the Court and its relevance in 21st century public life: cameras in the courtroom.

In contrast to her more outspoken predecessor, newcomer Sonia Sotomayor appeared willing to support broadcasting oral arguments when queried on the subject last summer at her confirmation hearings. And, as this 2009 C-SPAN clip reveals, Kagan has also spoken glowingly of the idea.

This is good news—and not just for rabid wonks and SCOTUS devotees. The argument for televising or, at the very least, streaming oral arguments should be obvious. By giving citizens an unfiltered window into their proceedings, the Court would promote public engagement in civic matters, provide a sorely needed counterweight to less admirable television personalities, and bring an unprecedented level of transparency to the process of deciding the important legal issues that may affect the most intimate aspects of our lives.

Broadcasting Supreme Court proceedings would also aid feminists in achieving gender and racial parity on the court. While many have a vague idea of who makes up the nine judges, actually seeing them enrobed and assembled on the bench would jolt Americans out of complacency and spur them to press their political leaders for greater diversity.

Critics may carp, as one Congressman recently did, that the cloistered intellectual work of appellate judges differs so markedly from that of other political appointees that cameras would mislead lay viewers about how cases are decided. Televising the proceedings, opponents argue, would be like staging a novel-writing competition and serve simply to supply fodder for late-night comedians and fiery, fatuous pundits on cable news. That is a valid concern, no doubt, but justices have life tenure. They’re not going anywhere, no matter how bilious the attacks from Glenn Beck get. The justices should sacrifice their vanity and join their new colleague in supporting this step toward good government.

Photograph of Elena Kagan by Chip Somodevilla/Getty Images.

Tags: cameras, celebrity, confirmation hearings, Elena Kagan, gender gap, law, Reality TV, Supreme Court

—Bad news for neglectful parents. A study finds that low-quality childcare early in life can impact learning and behavior through adolescence. [Washington Post]

—According to a recent Wall Street Journal/NBC poll, voters prefer Tea Parties to established political parties. [Salon]

—Worst job interview ever. The White House reportedly asked Elena Kagan if she was gay before nominating her for the position of Solicitor General. Despite the controversy surrounding Kagan’s policy toward military recruitment at Harvard Law, moderate Maine Republican Susan Collins says a filibuster is unlikely. [Washington Post, Politico]

—A billionaire’s ex-wife teaches women how to blog tastefully about their messy divorces. [Gawker]

—Is it illegal to talk women into committing suicide? This chilling court case may give us the answer. [New York Times]

Tags: child development, divorce, Elena Kagan, gay, law, marriage, parenting, politics, suicide, Supreme Court, tea party

—South Carolina Gov. Mark Sanford rekindled his romance with his Argentine soulmate last weekend in Florida. [Politico]

—Female CEOs now earn more than their male counterparts. [ABC News]

—Solicitor General Elena Kagan’s six appearances before the Supreme Court yield little insight into her views. [Washington Post]

—Newly minted British first lady Samantha Cameron has a dolphin tattoo on her ankle, and other interesting facts. [TresSugar]

—Designers bust onto the scene with more youthful “full-figure” bras. [WSJ]

Tags: bras, business, Elena Kagan, equal pay act, law, mark sanford, plus sizes, politics, samantha cameron, Supreme Court

On last night's Colbert Report, Slate's (and the XX Factor's) own Dahlia Lithwick discussed Elena Kagan with Stephen. "She has this magical ability to make you love her," Dahlia said, to which Stephen replied, "Is she a leprechaun?" The takeaway from Dahlia's segment, embedded below, was that the Kagan hearings will be mostly about her lack of judicial experience—not her sexuality or her potential leprechaun status.

Tags: Dahlia Lithwick, Elena Kagan, Stephen Colbert, Supreme Court

Just the fact that we're talking about which potential nominee to replace retiring Supreme Court Justice John Paul Stevens is also a "mom" is an indication that motherhood still affects the way a woman is perceived in her professional life. The "motherhood penalty" among working women is rarely questioned: The gap in wages between working mothers and nonmothers is larger than the gap between women and men; a study published in the American Journal of Sociology by researchers Shelley Correll, Stephen Benard, and In Paik in 2007 found that when considering equally qualified candidates for the same position, mothers were perceived as less competent and consistently recommended for a lower starting salary. Worse, a new study from Benard and Correll (not yet published) finds that when presented with two unambiguously qualified female candidates for the same position, one a mother, one not, women—not men—viewed the exceptionally successful mothers as less likable and as having more negative interpersonal qualities. In other words, it looks like women would rather have a drink with Elena Kagan than with Diane Wood.

In the Daily Beast, Peter Beinart argues that putting a mom on the Supreme Court (another mom—Ruth Bader Ginsberg has two children) would send a message to young women that you can achieve professionally and still have a family, a message that, in spite of politician "ubermoms" like Sarah Palin, Nancy Pelosi, and Michelle Bachmann, Beinart suggests is still drowned out by comments like that of Pennsylvania Governor Ed Rendell’s about Janet Napolitano's appointment to head the Homeland Security Department: "Janet has no family. Perfect. She can devote, literally, 19 to 20 hours a day to it.” We see mothers differently.

For the record, both Wood and Kagan taught at my law school when I was a student there, and I'd happily have another drink with either—or see either put on the Supreme Court robes. But until a woman can walk into a job interview or a confirmation hearing and feel confident that no one's given more than a passing thought to her home life, I'll always be inclined to root for the potential nominee who, in that one respect, looks most like me.

Tags: Diane Wood, Elena Kagan, Supreme Court, working mothers

I agree, Dahlia. Despite the media's attempt to paint Alito as some kind of fist-pumping judicial tea bagger, his mildly indecorous headshake was hardly the “partisan sideshow” some liberal bloggers have made it out to be. The problem is not that the court has morphed into some kind of political monster over the last decade, it's that, in the age of 24-hour news and juicy tell-all memoirs from government officials, the patina of impartiality has begun to wear off. No wonder the Supremes don't want cameras in the courtroom.

More than anything else, this incident reflects the personal rancor that persists between Obama and the newest conservative justices. Alito and Roberts, both Bush nominees, faced substantial opposition from Senate Democrats during their confirmation hearings. Toeing the party line, then-Senator Obama voted against Roberts' promotion to the Supreme Court and joined the effort to filibuster against Alito's confirmation. For the junior justice, these wounds are still fresh. It was reported last year that Alito boycotted a casual meet-and-greet with the new president and crosses to the far side of the street whenever he walks on Capitol Hill.

So what's to be done about this? If Obama can spare a sudsy summer afternoon for a dialogue on race, surely he can demonstrate true due deference to his colleagues in the third branch and make an earnest bid at détente. I propose that Obama sit down with the conservative justices over a few glasses of wine, or, better yet, engage them in a rousing game of hoops on the highest court in the land. And let them win this time.

Tags: citizens united, Justice Alito, law, Obama, Supreme Court