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.)

I think the best source for assessing this is Justice Souter’s dissent:

Indeed, if the Court can read Gardner-Denver as resting on nothing more than a contractual failure to reach as far as statutory claims, it must think the Court has been wreaking havoc on the truth for years, since (as noted) we have unanimously described the case as raising a “seemingly absolute prohibition of union waiver of employees’ federal forum rights.” Human ingenuity is not equal to the task of reconciling statements like this with the majority’s representation that Gardner-Denver held only that “the arbitration was not preclusive because the collective-bargaining agreement did not cover statutory claims.”

Barwickian it is!

I’m going to be too lazy to actually look up the case

The argument transcript is here, opinions available here.

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.

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.

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”.

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 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.”

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.

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.

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.