Conecta Abogados / Flickr Confirman a Neil Gorsuch a Suprema...
Conecta Abogados / Flickr

Justice Neil Gorsuch just perverted the law with relish to uphold forced arbitration agreements employers foist upon employees to deny those employees’ access to courts. Instead of a public proceeding that could benefit all employees affected by a bad practice—in this case, misclassifying employees to avoid paying them overtime—employees’ only options are one-on-one, one-by-one secret proceedings that heavily favor companies and giving up.

Gorsuch began his ruling in Monday’s Epic Systems Corp. v. Lewis with classic conservative judicial pablum claiming choice where none exists. It’s just boilerplate by now; he probably had to sign his own contract obliging him to use Federalist Society talking points at least three times per term.

Justice Gorsuch delivered the opinion of the Court.

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-on arbitration? Or should employees always be permitted to bring their claims in class or collection actions, no matter what they agreed upon with their employers?

Gorsuch conveniently ignores that the epic growth of forced arbitration as we know it started roughly in 1991. Arguing that it wasn’t banned by NLRA until recently is truly strawman-land:

This Court has never read a right to class actions into the NLRA—and for three quarters of a century neither did the National Labor Relations Board. Far from conflicting, the Arbitration Act and the NLRA have long enjoyed separate spheres of influence and neither permits this Court to declare the parties’ agreements unlawful.

Trump’s justice dismisses the Federal Arbitration Act’s savings clause, which states that arbitration agreements can be invalidated “upon such grounds as exist at law or in equity for the revocation of any contract.” That clause matters, of course, because the National Labor Relations Act protects not only employees’ right to unionize but “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Class actions are critical for employees, consumers and others harmed by large institutional actors. Through a class action suit, an entire group, many members of which couldn’t afford independent legal action, can be represented by a representative few for the purpose of seeking justice for all.

Republicans have been chipping away at class actions for quite a while, e.g., attempting to make the class certification requirements impossible to satisfy or making class actions too much of a risk and too costly for attorneys by dictating that awards not be given until years after a judgment.

Class actions are the best—and most expeditious, if you’re into justice—way to stand up to powerful institutions and corporate actors. They’re a means of getting help for the affected population and/or halting bad practices, i.e., polluting, making poisonous products, or denying employees overtime pay.

If a class action suit brought to secure justice for the largest number of affected employees is not a “concerted activit[y] for the purpose of … mutual aid or protection,” what is?

Contorted and far-fetched as the legal reasoning is, the majority’s ruling isn’t a surprise, just an unpleasant reminder: Gorsuch’s record on the Tenth Circuit gave us a solid preview. He’ll always side with the institution, whether he’s ruling against employees who say they were misclassified so they couldn’t get overtime, as here, or students with disabilities.

In her 30-page dissent, which begins by proclaiming the majority “egregiously wrong,” Justice Ruth Bader Ginsburg—joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan—goes straight for one of the ruling’s biggest implications: This ruling ensures employees who incur a harm they believe to be less than the likely cost of fighting a corporation will be denied justice entirely.

Ginsburg notes forced arbitration agreements’ similarity to early-20th century “yellow dog” contracts, which corporations used to bar employees from collective action. Predecessor legislation in the form of the Norris-LaGuardia Act (NLGA) and the National Labor Relations Act were explicitly intended to end these yellow dog contracts.

RBG showed remarkable restraint in walking her colleagues through the language of the NLRA. Unless you read into the fact that she’s explaining it in kindergartener-accessible language.

Ginsburg calls Gorsuch out on his revisionism: Until today, finding the NLRA protected employment-related class actions was the norm. That’s right: The court’s conservatives once again (cough, Citizens United) disregarded abundant precedent to achieve a politically desirable result.

She also takes aim at Gorsuch’s outright bizarre invocation of ejusdem generis, a principle stating vague language at the end of a list should be assumed to refer to the same kind of thing as the preceding items. His version of ejusdem generis is certain to confuse those familiar with the term and those new to it alike, because it doesn’t apply here. Ergo, here RBG drops more fighting words: “This argument is conspicuously flawed.”

In what has to be the snarkiest citation of the term, RBG quotes the infamous Robert Bork to the majority as she makes the point that not even the bad precedent conservatives have installed of late supports the ruling: “Judges … live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”

RBG didn’t write a dissent: She wrote a future opinion, as Justice Stevens did in Bowers v. Hardwick. Bowers declared anti-sodomy laws constitutional. Fifteen years later, the majority cited his dissent when it reversed itself. Now, the concept Stevens cited as barring the court’s anti-gay ruling—the dignity of individual choice—is an animating concept in LGBTQ legal advocacy.

Gorsuch could have taken a more moderate, more defensible path. The employees offered a middle-ground option on a silver platter: Don’t worry about finding a right to court, but for God’s sake let us band together in arbitration. He refused, taking an extreme position. The upside is that when conservatives overplay their hand, it makes it easier for a future court to justify reversing the decision.

Hopefully that day comes soon. We can’t wait 15 much less 32 years for Ginsburg & Co.’s vindication. Millions of us—if not most of us—are already subject to forced arbitration agreements, know it or not. Following this decision, firms’ abuses of forced arbitration will escalate. And, of course, this catastrophic decision is only one of many, to be followed by many more until the court’s no longer controlled by conservative activist jurists willing to flip precedent for politics.

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