NPR is running this story from the Associated Press and this report -- noting the different reactions from the Court's male and female Justices -- from analyst Nina Totenberg. Totenberg, like others, fails to note Justice Breyer's evident support for the case.
Lyle Deniston of SCOTUSblog writes, "Argument recap: A fatal flaw detected?" Deniston notes that several of the justices were bothered by what Justice Kennedy called an inconsistency: the plaintiffs' allegation that "Wal-Mart has a policy of maintaining a common “culture” (the “Wal-Mart Way”) that ensures uniformity throughout its thousands of stores, yet company headquarters gives its local store managers unlimited discretion to decide workers’ pay and promotions, and the two together result company-wide in lower pay and fewer promotions for female employees." Deniston also correctly notes that plaintiffs' counsel Joseph Sellers faced "tough questioning from Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, Ginsburg was a bit worried about how, if the class action did proceed, a federal judge could handle the issue of sorting out who among them received an award of back pay, and Kagan and Sotomayor appeared troubled about how the judge would handle individual hearings into the job harms allegedly done to specific women employees."
James Oliphant, writing for the L.A. Times, agreed: "But although the more conservative-leaning justices on the high court seemed the most hostile to the case, nearly all its members appeared troubled by aspects of the litigation, with concerns including how back pay would be awarded to plaintiffs and whether the company would be afforded ample opportunity to present evidence of non-discrimination at trial."
I have to disagree with his assessment that the three female justices, Bader Ginsburg, Sotomayor, and Kagan, appeared "most sympathetic" to the case. That position clearly belongs to Justice Breyer, who seemed to have no qualms with the plaintiffs' case.
Oliphant concludes that concerns about back pay in a Rule 23(b)(2) case, among others, "left open the possibility that, rather than a divided court issuing an opinion in a highly charged case involving sex discrimination, the justices could decide to remand the case to the lower court under a revised set of guidelines."
The Wall Street Journal reports that the case "appeared unlikely to survive after Tuesday's Supreme Court arguments, where justices suggested the lawsuit was unfair both to the retail giant and hundreds of thousands of women who allegedly were victimized." The story continues:
But Justice Ruth Bader Ginsburg questioned whether plaintiffs, seeking a procedural advantage, had cut thousands of alleged victims out of potential remedies.The suit was filed under a provision [Rule 23(b)(2)] that makes it easier to certify a class action and obtain an injunction against misconduct, but limits compensatory damages.Justice Ginsburg said that for women who no longer work at Wal-Mart, those compensatory damages for past wrongs are more important than ensuring future opportunities at the company.
The New York Times is running this brief article, which is not as negative about the plaintiffs' chances of succeeding.
Plaintiffs' counsel issued this press release, stating that they "made a compelling case for upholding the lower court opinion that the case go forward as a class."