In a statement regarding the denial of certiorari today, Justice Alito was critical of the practice of Judge Baer (noted in our post here) of requesting law firms staff class actions with lawyers reflecting the gender and racial makeup of the class. Justice Alito agreed that the matter did not merit Supreme Court review because of the “uniqueness of th[e] practice,” but stated that he found it objectionable:
Based on the materials now before us, I am hard pressed to see any ground on which Judge Baer’s practice can be defended. This Court has often stressed that “[r]acial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.” Edmonson v. Leesville Concrete Co., 500 U. S. 614, 630 (1991). Court approved discrimination based on gender is similarly objectionable, and therefore it is doubtful that the practice in question could survive a constitutional challenge. . . . It seems quite farfetched to argue that class counsel cannot fairly and adequately represent a class unless the race and gender of counsel mirror the demographics of the class. Indeed, if the District Court’s rule were taken seriously, it would seriously complicate the appointment process and lead to truly bizarre results. It may be no easy matter to ascertain “the class composition in terms of relevant race and gender metrics.” In some cases, only the defendant will possess such information, and where that is so, must the parties engage in discovery on this preliminary point? In other cases, it maybe impossible to obtain the relevant information without requesting it from all of the members of the class. For example, in a securities case in which the class consists of everyone who purchased the stock of a particular company during a specified period, how else could the race or gender of the class members be ascertained? Where the demographics of the class can be ascertained or approximated, faithful application of the District Court’s rule would lead to strange results. The racial and ethnic makeup of the plaintiff class in many cases deviates significantly from the racial and ethnic makeup of the general population or of the bar. Suppose, for example, that the class consisted of persons who had undergone a particular type of treatment for prostate cancer. Would it be proper for a district judge to favor law firms with a high percentage of male attorneys? Or if the class consisted of persons who had undergone treatment for breast cancer, would it be permissible for a court to favor firms with a high percentage of female lawyers? In some cases, the members of a class may be significantly more affluent than the general population. (A class consisting of the purchasers of stock may be an example.) To the extent that affluence correlates with race, would it be proper for a district judge in such a case to favor law firms with relatively low minority representation?
(H/T Alison Frankel)