Dahlia Lithwick's latest article over at Slate has me confused. In it, she decries three 5-4 decisions from the past Supreme Court term, Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Janus Capital Group Inc. v. First Derivatives Traders. What, exactly, is Ms. Lithwick's problem with these decision? In her own words: "The greatest impact of the Wal-Mart decision isn't the blow dealt to class-action suits. It's the guidance it provides employers" (This sentiment permeates the article, and is every bit as applicable to the AT&T and Janus cases as to Wal-mart).
This argument baffles me. The entire point of written opinions, rather than simple judgments, is to expose the court's reasoning and bring clarity to the law. If one disagrees with that judgment or reasoning, then yes, the opinion may well look like a guide to being evil. But to actually ascribe such malicious intent to the court only undermines its legitimacy. That may sound like a good idea when it's issuing opinions you don't like, but it's unlikely to stop at just those.
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