Yesterday was the long-anticipated oral argument in Wal-Mart v. Dukes. I’ve attached a copy here. Overall, the Justices were clearly prepared for the argument, although they–like almost everyone else–had trouble keeping all of the facts straight. A few highlights:
- Justices Ginsburg, Kagan, and Sotomayor took an early lead in questioning Ted Boutrous (who argued for Wal-Mart).
- Boutrous was clearly having a good day. He had command of almost all of the facts, and was able to subtly correct various Justices at different points when they got lost in the weeds.
- Justices Kennedy and Scalia each had problems with the coherence of plaintiffs’ underlying theory. As Justice Kennedy put it: “your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there”
- Awarding “back pay” under Rule 23(b)(2) seemed to cause most Justices heartburn. Justice Ginsburg called it “a very serious problem in this case.”
- Several Justices, including Sotomayor and Scalia, had trouble accepting the legitimacy of the proposed statistical proof.
So where does that leave the case? The “more question” rule doesn’t provide much guidance in this case. But it does appear that the Justices were wrestling with the questions of how to prove commonality and whether 23(b)(2) certification is appropriate. If I had to predict, I’d say that Wal-Mart’s probably in better shape than the plaintiffs at this point. Of course, we’ll find out in June.