Reaching A Result Justice Scalia Would Have Approved By Means He Would Not Have Approved?
Edith Roberts is the author of a very interesting March 6, 2017 post in Scotusblog about an otherwise bone dry topic, entitled, "Judge Gorsuch's arbitration jurisprudence." Our takeaway: "[A] look at the arbitration rulings Gorsuch has made [on the 10th Circuit] suggests that he is likely to continue the trend on the court in favor of FAA pre-emption."
Roberts points out that SCOTUS has agreed to review three consolidated cases asking "whether agreements to forgo class actions or collective proceedings and instead resolve employer-employee disputes through individual arbitration are enforceable under the FAA or whether, as the National Labor Relations Board has held, such agreements violate the National Labor Relations Act." By the time the cases are heard, Judge Gorsuch will likely be Justice Gorsuch. Roberts suggests because Judge Gorsuch, unlike Justice Scalia, does not adhere to Chevron deference to agencies, a future Justice Gorsuch will not hesitate to swat down the NLRB if he believes it exceeds the authority under its enabling statute. The result will be SCOTUS enforcement of FAA preemption and " a muscular interpretation of the FAA – through legal reasoning the late justice might not have endorsed."
In an article entitled The Politics of Arbitration, I wrote in 2016: "Appointment of a ninth Justice to the Court remains undecided as of the writing of this article. When it is decided, the politics of the appointment process and the next Justice will inevitably impact the polarized politics of arbitration and the outcome of arbitration cases affecting the rights of business owners, consumers, and employees." I also suggested that Morris v. Ernst & Young "could serve as a springboard for sending divergent opinions about the enforceability of arbitration provisions used to prevent 'concerted activity' by employees to the Supreme Court for review." Morris v. Ernst & Young is one of the three consolidated cases that Roberts refers to, and that SCOTUS has agreed to hear. Roberts' instructive post does not bode well for the 9th Circuit ruling in Morris.