Something that I think most people don’t realize is that for the vast majority of American history, the judicial branch has been a very conservative elite-dominated institution. Most people’s view of the matter is distorted by the historical aberration that occurred roughly between the Brown and Roe decisions, with a lot of good criminal justice decisions in between. Even there, one has to recall that with its landmark civil rights decisions, the Supreme Court was in large part just reversing what the late 19th century Supreme Court did by throwing out the civil rights legislation of the Grant administration.
I think Dahlia Lithwick’s take on the conservative opinion written on the Wal-Mart sex discrimination case illustrates the point:
A lot of critics are saying that this decision has created a new rule: Some companies are simply too big to sue. But that’s only half the story. The other half is that in the court’s eyes, sex discrimination is simply too pervasive to be a problem. [...]
Scalia concludes that (even in advance of a lawsuit) the women could not show that Wal-Mart “operated under a general policy of discrimination.” That’s partly because “Wal-Mart’s announced policy forbid sex discrimination” and partly because he rejects the plaintiffs’ claim that Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters constitutes a policy at all. As Scalia sees it, in giving local managers so much leeway in making personnel decisions, Wal-Mart actually established “a policy against having uniform employment practices.” It’s not Wal-Mart discriminating against women. It’s just all these men doing it, and God knows men don’t have unconscious biases and prejudices against women.
Imagine that general background social conditions in the United States are such that women will be disadvantaged in any male-run institution that doesn’t make a specific and deliberate effort to lean against that disadvantage. Scalia says, basically, so what? Lithwick is implicitly saying that the courts ought to be a mechanism of justice and progress here, spurring firms to worry that they’ll be at risk unless they take proactive measures to reduce gender discrimination throughout their operations. Scalia’s not interested. And realistically, this is the reaction we should generally expect from the judiciary when it comes to these business liability cases. Fundamentally, fancy lawyers are just as much the social peers of business executives as ordinary politicians are, but fancy lawyers aren’t accountable to voters the way ordinary politicians are.