Who knew that Scalia believes in magic?
Justice Antonin Scalia, in addition to being an originalist, also apparently believes in magic. Or so we must conclude. In yesterday’s argument over whether to certify a class-action alleging gender discrimination at Wal-Mart against female employees, the employees’ lawyers argued that Wal-Mart, by adopting a policy of delegating pay decisions to local managers, fostered a culture whereby pay and promotion decisions would knowingly result in decisions systematically biased in favor of male employees. Scalia’s reaction to this argument was that the company had an “announced policy against sex discrimination” and expressed disbelief when the lawyer representing the women argued that the reality was just the opposite. I guess it must be the case that because Wal-Mart promulgated this policy, we can then assume, magically, that it was in fact implemented and observed in good faith. An employer would of course never announce a policy that it had no intention of complying with in order to do something so crude as trick people into thinking they are in compliance with the law or that they are a progressive employer. Especially not a company like Wal-Mart, which already enjoys a stellar reputation as an exemplary employer.