A Glimmer of Hope for the Women of Wal-Mart

At least 1.5 million women are wondering what's going to happen when the Supreme Court gets its hands on the class-action, gender-discrimination lawsuit against corporate giant Wal-Mart. That's the approximate number of plaintiffs in the case who have alleged they've been victims of institutional efforts by Wal-Mart to promote men over women and systematically pay women less than men. Technically, the only issue to be determined by the Supreme Court is whether a class of plaintiffs can be this big. But as SCOTUS watchers know, that hasn't always stopped the the highest court in the land from crafting decisions that go beyond the stated issue, so the question of gender discrimination is likely to have an impact on the final outcome.

And that's where the personal experiences of Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan come in -- three women who, undoubtedly, have experienced gender discrimination in their professional lives and can use that lens through which to persuade the testosterone side of the bench to see things differently.

Justice Ginsburg, as the only woman on the bench in 2006, wasn't able to persuade her male colleagues that Lilly Ledbetter was owed $365,000 in back pay and benefits that were denied her by her longtime employer, Goodyear. But in a later case, Ginsburg was successful in convincing her eight male colleagues that there is a serious difference between being a teen boy and dealing with school locker room antics and a teen girl who's been asked to strip for a drug search in her principal's office in Safford Unified School District vs. Savana Redding. Following the oral arguments in the case about whether Redding's constitutional rights had been violated, Ginsburg lamented:

"They have never been a 13-year-old girl . . . It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

No matter how many times some people say that applying the law to facts is a somewhat clinical exercise that should be devoid of the nuance of real life, it's always someones real life that's impacted by legal rulings.

When it comes to the upcoming Wal-Mart case, It's probably safe to say that the men on the Supreme Court can't quite understand the subtle realities of gender discrimination in the workplace because they've never been a target, though I'd be interested in hearing what their wives and daughters have to say about their experiences. But Ginsburg has been very open about her experiences having to hide her pregnancies for fear losing her job. While Justices Sotomayor and Kagan have been more circumspect about how the legacy of gender discrimination may have impacted their careers, there's no question that having three women on the Supreme Court for the first time ever will play a significant role in the behind-the-scenes judicial discussions that take place on the Wal-Mart case, just as having an outraged Ginsburg did for Savana Redding.

When oral arguments are scheduled this spring, it might be the first opportunity to test my theory that when it comes to women on the Supreme Court, two plus one may equal more than three votes.