These advocates must have been surprised on Monday, when not a single justice on the Supreme Court, liberal or conservative, voted to uphold the Ninth Circuit's ruling - not Ruth Bader Ginsburg, not Elena Kagan, not Stephen Breyer, not Sonia Sotomayor.
Pointedly ignoring amicus briefs filed by a long list of liberal pressure groups and law professors, all nine justices agreed that the Ninth Circuit had jumped the gun and erroneously approved the case's certification as a class action. The four liberal justices wanted to send the case back for further consideration, while a five-justice majority led by Antonin Scalia ruled that it clearly wasn't suitable for class treatment based on the evidence available.
The misconceptions about this case begin with the identities of the real combatants. On NPR's Marketplace this week, Slate's Dahlia Lithwick described the plaintiffs as "1.5 million female employees of Wal-Mart who are trying to file a class-action suit." But, of course, most of those women are not "trying" to do anything of the sort.
Rather, a relative handful of them have hired lawyers, and those lawyers daringly sought to get themselves declared the legal representatives of the other 1.496 million (or however many), who have expressed no inclination whatsoever to sue.
Class-action litigation is typically lawyer-driven. In the employment field, it's common for lawyers to target companies they want to sue, amass a file over a period of years, discreetly (or not-so-discreetly) reach out to employees or ex-employees, and select those with the most media-friendly stories to step forward as public representatives.
