The Supreme Court has just brought down a 5-4 ruling, written by Clarence Thomas, denying workers the right to sue over age discrimination if their union agreement calls for arbitration. As the New York Times says, it’s hard to believe that Congress intended this.
It seems likely that we will see a lot more of this kind of thing, since the Bush Administration has packed the courts with movement conservatives. Fortunately, there is a simple response available, at least in cases of statutory interpretation. Every time the Supreme Court comes out with a decision like this, Congress should pass a tightly worded act, repudiating the Court’s interpretation. Sooner or later, they wil get the message.
We had this problem in Australia with a Chief Justice (Garfield Barwick) who continually undermined the tax laws on the basis of an extreme form of textualism. In this case, it wasn’t sufficient to fix the law after he broke it, since new tax dodges arose with great regularity. Eventually Parliament passed amendments to its meta-legislation, the Acts Interpretation Act, stating that the courts should take into account the intention of Parliament as stated in the second reading speech that normally introduces the law. Barwick resigned about the same time.
Of course, this won’t work if the Republican majority on the court relies on constitutional interpretation to strike down legislation. This ought to (but certainly won’t) provoke an outcry from conservative opponents of “judicial activism”. But, as Roosevelt showed, it’s a political struggle in which the courts are not as well-placed as they might seem. A determined legislature with popular backing can make it very hard for courts to defend strained interpretations of the constitution.
{ 29 comments }
Righteous Bubba 04.04.09 at 3:57 pm
The Republican bind: enjoyment at smacking the activist judiciary or sticking with ideology?
Liam 04.04.09 at 4:58 pm
At last! A liberal who opposes judges forming legislation rather than interpreting it!
dmarks 04.04.09 at 5:07 pm
I am not familiar with this ruling, but I typically tend to side with workers when it comes to union-vs-worker conflicts.
mark f 04.04.09 at 8:27 pm
Why is Clarence Thomas stating that private contracts can supersede federal law, and why are four other justices agreeing with him?
Joe S. 04.04.09 at 8:38 pm
I agree that the ruling in this case was heinous. But it is at least consistent with about the past 20 years of more-or-less bipartisan interpretation of the Federal Arbitration Act. The villains are not only movement conservatives; they include milquetoast liberals who are terrified of juries and plaintiffs’ lawyers.
Tom West 04.04.09 at 9:30 pm
I don’t understand. If the union has the power to bargain away these rights, then doesn’t a non-unionized individual? And if a non-unionized individual has the right to bargain away these rights, then won’t such a provision be in every employment contract from now on?
MarkUp 04.04.09 at 10:25 pm
”be in every employment contract from now on?”
The depth is far greater than employment.
roac 04.04.09 at 11:51 pm
At last! A liberal who opposes judges forming legislation rather than interpreting it!
This is a joke, right? “Judicial activism” is like “federalism” and “states’ rights.” Nobody really gives a damn about any such abstractions. People of every stripe want the law interpreted in a way that favors their interests, meaning in 98% of cases their monetary interests. They deploy to suit the occasion whatever principles will put the decision in the hands of whatever body, legislative or judicial, is likely to favor their interests.
Bloix 04.05.09 at 3:10 am
For 30 years, the rule in organized labor cases has been very simple. Union versus corporation: union loses. Union versus union members: union wins. This is just another application of the rule.
ejh 04.05.09 at 9:24 am
I seem to recall that during the “Fares Fair” case in the UK twenty-five years ago or so (where the courts refused the GLC the right to operate a subsidised public transport service) the ex-minister who had actually introduced the legislation which the courts said made the policy illegal, appeared to say that the courts’ interpretation was wrong and not what had been intended. Made no odds: they went ahead and banned it anyway.
BlackMage 04.05.09 at 9:53 am
I think bringing up Garfield Barwick without bringing up Lionel Murphy as well, he of the ‘implications arise because we’re a free society’ test, is a bit much. Murphy makes Michael Kirby look like Ian Callinan, or possibly Dixon.
PreachyPreach 04.05.09 at 11:21 am
ejh> As I recall, the case that established principle that UK courts could actually rely on statements made in parliament in interpreting legislation was Pepper v Hart (unsurprisingly a tax case) and that only dates back to 1993…
Thomas 04.05.09 at 2:46 pm
Yes, Congress should pass a law making it clear that Congress believes unions often don’t operate in the interest of their members. Perhaps they can add the language to the EFCA.
Carl 04.05.09 at 4:51 pm
Thomas should have never been confirmed–all he had were blanket denials regarding Anita Hill’s charges, whereas she had corroboration from those she told it to at the time.
Well, in short I believe Anita.
In any case, even when the Right is in the minority they’re still able to thwart equality, which Brian Barry, Catharine MacKinnon and others have worked diligently to achieve.
Peter 04.05.09 at 8:27 pm
I have a hunch that what with the aging population, and less overt discrimination against racial/ethnic minorities, age discrimination will increasingly become the “hot topic” as far as discrimination lawsuits are concerned.
John Quiggin 04.05.09 at 8:56 pm
As regards Murphy, I don’t agree with the “implications of a free society” view, but since he was in a minority of one nearly all the time, it didn’t do any harm. And, in the Australian context where the High Court had a long tradition of limited reading even of those rights that were clearly stated in the constitution, while using tortured reasoning to defend the interests of the rich and powerful, Murphy’s arguments provided a corrective. In particular, his dissents did a great deal to demolish the Barwick theory of strict literalism.
D. L. Roth 04.06.09 at 4:51 am
Is your opinion based on knowledge of United States constitutional law and what Thomas said in his opinion, or is it based entirely on the New York Times editorial?
John Quiggin 04.06.09 at 10:43 am
#17 There’s no constitutional issue in this case and Thomas was (as usual) offering a snark of no value. More relevantly, as the post makes clear, my opinion is derived largely from Australian experience of related debates which I thought might be of interest to those US readers who accept the notion that experience elsewhere in the world might actually provide useful information (a class of which you’re apparently not a member). I was using the NYT report as a discussion-starter for the more general point – I agree with them on the case at hand, but that’s a secondary issue.
Phill Hallam-Baker 04.06.09 at 1:20 pm
Agreed that Thomas should be considered in the category ‘unindicted sex offender’ rather than ‘respected member of the Supreme Court’.
But this particular issue is an example of the type of battle that won’t really be joined for another few months at least. For the time being it suits the administration (but not the Republicans) to continue to follow a ‘bipartisan’ approach.
The Republicans know that they really have to get back to ideological trench warfare to hold onto their rump. But they also know that they have to be able to plausibly lay the blame for this on Obama.
MarkUp 04.06.09 at 2:32 pm
”The Republicans know that they really have to get back to ideological trench warfare to hold onto their rump. But they also know that they have to be able to plausibly lay the blame for this on Obama.”
The Newt and EMP for the first and for the second, when Bush left office he left a balanced budget. Thought it was projected and a decade or three in the future, there it was on paper, in fresh black and white. Remember too that under or unemployment and cumulative lower wages are indeed another form of a tax cut. Perspective.
MarkUp 04.06.09 at 2:32 pm
”The Republicans know that they really have to get back to ideological trench warfare to hold onto their rump. But they also know that they have to be able to plausibly lay the blame for this on Obama.”
The Newt and EMP for the first and for the second, when Bush left office he left a balanced budget. Though it was projected and a decade or three in the future, there it was on paper, in fresh black and white. Remember too that under or unemployment and cumulative lower wages are indeed another form of a tax cut. Perspective.
Thomas 04.06.09 at 9:52 pm
How amusing. John Q apparently doesn’t recognize that I’m not the Thomas on the court and/or that I am not the “Thomas” referred to in 17. (Or maybe I’m confused, maybe Justice Thomas’s opinion is nothing but a “snark of no value”–but what a strange thing for a majority opinion at the SCOTUS to be.)
John Q also can’t quite admit that he hasn’t read the opinion. But he has the temerity to offer his thoughts to “those US readers who accept the notion that experience elsewhere in the world might actually provide useful information.” Sure, John, but read the opinion next time, so you might have an idea what the actual issues are. And who wrote it.
As for Carl and Phill’s commentary, I’ve always thought the best bumper sticker would be this: “I believe (Ju)Anita.”
John Quiggin 04.06.09 at 10:01 pm
Fair catch Thomas, I was half-asleep there, and got my Thomases confused. I’ll come back on the main point later.
Anthony 04.07.09 at 3:30 am
It’s actually a long-established principle of American labor law that unions can negotiate contracts which allow work practices which are otherwise illegal. In California, hourly workers must be paid overtime after 8 hours in a day, unless there’s a union contract which agrees otherwise, for example, establishing a 4×10 work-week.
Since the Times’ editorialist was too lazy to even give the name of the decision, I’m going to be too lazy to actually look up the case, but just assert that the decision was correct given the way labor law works here.
John Quiggin 04.07.09 at 6:59 am
Anthony, this was a 5-4 decision in which the Republicans on the Supreme Court reversed a lower court finding. When the judiciary is split down the middle, I don’t think an assertion from a pseudonymous blogger that the outcome was obviously right carries much credence. More importantly, you don’t have to be a dogmatic legal realist to conclude, when you see a split on party lines, producing decisions that accord with partisan preferences, that the outcome was not the product of unprejudiced consideration of statutes and precedents.
As regards the text of the decision, the only issue relevant to my post is whether the Republican majority sought carefully to ascertain the intention of Congress or whether the decision said something, in the manner of Garfield Barwick, along the lines “We can produce a basis for finding against the workers that is satisfactory to us, and if Congress doesn’t like it, they’ll just have to change the law, and try again”.
Anderson 04.07.09 at 2:26 pm
I agree that the ruling in this case was heinous. But it is at least consistent with about the past 20 years of more-or-less bipartisan interpretation of the Federal Arbitration Act.
This is true, and ironically, Thomas was for long a consistent dissenter from opinions extending the reach of arbitration — IIRC, he thought the Commerce Clause was being stretched too far.
Anderson 04.07.09 at 2:38 pm
Also, see this from the syllabus:
As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer, and courts generally may not interfere in this bargained-for exchange. See NLRB v. Magnavox Co., 415 U. S. 322, 328. Thus, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad sweep. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 628. It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 26–33. Pp. 6–10. Accord-ingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this ap-peal. Pp. 6–10.The dissenters relied on a 1974 decision that a CBA didn’t preclude a Title VII suit, but I have to agree w/ the majority that intervening decisions have undercut the ground from that precedent.
I am not a big fan of arbitration, but this opinion was not that far out — Congress needs to step in and limit the reach of the FAA.
salient 04.07.09 at 4:07 pm
As regards the text of the decision, the only issue relevant to my post is whether the Republican majority sought carefully to ascertain the intention of Congress or whether the decision said something, in the manner of Garfield Barwick, along the lines “We can produce a basis for finding against the workers that is satisfactory to us, and if Congress doesn’t like it, they’ll just have to change the law, and try againâ€.
I think the best source for assessing this is Justice Souter’s dissent:
Barwickian it is!
I’m going to be too lazy to actually look up the case
The argument transcript is here, opinions available here.
Thomas 04.07.09 at 11:48 pm
Well, at least now you’ve read it.
You miss the fun bit with Anthony, which of course is the point, since you give credence to an anonymous editorial which asserts that the outcome was obviously wrong.
As for the decision itself, it seems clear that the decision follows from the relevant statutes, and therefore and not surprisingly the arguments in the dissent are focused on stare decisis and policy. Debates about stare decisis and ratio decidendi are really quite fun, but until now I thought most nonlawyers found them tedious. But in any event no one spent a lot of time trying to ascertain the intent of Congress, because, as is particularly clear in this case, there isn’t such a thing. There are three different and overlapping statutory schemes, and yet apparently the best evidence the dissent can find on Congress’s intent is an endorsement and inaccurate characterization of the 1974 Gardner-Denver decision in a 1991 committee report. Well, I’m sure that’s persuasive evidence of Congress’s “intention” on these statutes on some theory, but, honestly, I laughed.
In the end, it isn’t a particularly important case, and, as I suggested in my (snarky!) post above, I’m not sure why anyone would think there’s a natural ideological breakdown here. I mean, I’m no fan of unions, but apparently I find them more trustworthy than the dissenters do (and more trustworthy than they likely would have been in 1974, to the extent that’s relevant). Someone like Stevens is fighting a war he’s lost in Congress–he wants to limit arbitration to the extent possible. But it doesn’t appear–and I could be wrong about this–that the others have an objection to agreements to arbitrate these claims generally, just with allowing a CBA to require that arbitration. In other words, if a CBA permitted, an employer could simply require each employee to individually agree to arbitrate these cases. In that case, no problem says the Court.
salient, I’m surprised that Souter left that bit in, given how convincingly the Court’s opinion responds:
“And although his dissent describes Wright’s characterization of Gardner-Denver as ‘raising a ‘seemingly absolute prohibition of unionwaiver of employees’ federal forum rights,’ ‘ post, at 7 (quoting Wright, 525 U. S., at 80), it wrenches the statement out of context: ‘Although [the right to a judicial forum] is not a substantive right, see Gilmer, 500 U. S., at 26, and whether or not Gardner-Denver’s seemingly absoluteprohibition of union waiver of employees’ federal forum rights survives Gilmer, Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be pro-tected against less-than-explicit union waiver in a CBA,’ id., at 80 (emphasis added). Wright therefore neither endorsed Gardner-Denver’s broad language nor suggested a particular result in this case.” (There’s emphasis on ‘whether or not Gardner-Denver’s’ and ‘survives Gilmer’ in the original, but I’m not even going to attempt that here.)
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