Conservative, Republican, Activist Courts

Republicans have complained about activist judges for decades. But actually they like activist judges who garble the law. Here’s a story in three parts of conservative, Republican, judicial activism.

Let me start in 1925 when the Federal Arbitration Act became law. Congress can regulate interstate commerce. The law said arbitration clauses were enforceable for business contracts in interstate commerce but not for employment contracts in interstate commerce. The term interstate “commerce” meant the same thing in the section mandating enforcement for commercial contracts and in the section exempting employment contracts. As a result, employment contracts were not governed by the Federal Arbitration Act.

 In 1925, the Court interpreted interstate “commerce” very narrowly. As the Court then understood it, few businesses were in interstate commerce. If they were, arbitration would be enforced but not for employment contracts. Interstate “commerce” meant the same thing in the section mandating enforcement and the section exempting employment.

 Part 1: In 2001 the Rehnquist Court reread the Arbitration Act. It read contracts in interstate “commerce” in section 2, mandating arbitration, broadly, the way interstate commerce is now generally understood. But it held interstate “commerce” in section 1, which exempted employment contracts, should be interpreted the way it was in 1925 B very narrowly. That turned the Act on its head so that it enforces arbitration clauses in all employment contracts. That=s activism.

 Most arbitration clauses are written by large companies and presented to the rest of us in Asign here@ form. The clauses specify how arbitrators are chosen, where arbitration will take place, how much it will cost to arbitrate, and generally whether an employee will have a prayer of justice.

 Anyone familiar with arbitration understands that arbitration can have huge advantages but that it can be constructed to put huge biases in the face of occasional claimants trying to take on big companies in arbitration.

 Part 2: The Court has continually revised the Federal Arbitration Act to amplify the biases of arbitration. It requires arbitration despite violations of federal or state statutes. In cases flying under most people=s radar, the Court has effectively rewritten federal and state labor and consumer protection law, rewritten it wholesale, not picking on provisions that might be wrong in some way, but simply disabling federal and state protections wholesale.

 Few have been aware of these cases. But Republicans and conservatives have noticed – they plan litigation campaigns to take advantage of the Court=s arbitration cases.

 Part 3: Now the Roberts Court has decided that the arbitrator gets to decide whether the contracts that specify arbitration are so grossly unfair that they are illegal under an ancient doctrine known as unconscionability. So arbitrators required by company contracts get to decide whether the arbitration clauses are legal.

 How they did it shows what Roberts meant by the fairness of an umpire. Prior decisions said challenges to arbitration clauses in contracts should go to a Court. So companies hand job-seekers two pieces of paper, one the “employment contract,” the other just an “arbitration contract,” saying sign both. To everyone but conservative judges with an ax to grind, that’s one deal, one contract. But the Roberts Court said great – the case is different − because there are two contracts, the fairness of the arbitration clauses goes to the arbitrator.

 The reality is that the Roberts and Rehnquist Courts have been two of the most activist Courts in US history. They figured out that they could fly under the radar while reaching some of the Court=s most activist, and bizarre decisions.

 I’ve heard it said that the Republicans own the complaint about activist courts. It=s time to hoist them on their own petard B they are the activists, largely in pursuit of special, well-heeled interests who use the law to take advantage of the rest of us. Shame on them; shame on the Court; shame on the conservative hypocrites crying activism.

This commentary was broadcast on WAMC Northeast Report, July 6. 2010.

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