The Epic Supreme Court Decision
The Supreme Court released its opinion in Epic Systems Corp. v. Lewis, upholding the enforceability of individual arbitration mandates in employment contracts. Arbitration, for those not in the know, is a form of “alternative dispute resolution”, less formal than a court action, in which a dispute is settled not by a judge in a court of law but by an “arbitrator”, who is generally agreed upon by the parties. Arbitration is intended to cut down on judicial back log and to reduce costs to the parties. It is binding, and is only available when both parties agree to use it.
The United States Congress passed the Federal Arbitration Act (FAA) in 1925, legitimizing the use of the process by compelling the enforcement of arbitration clauses and making the outcomes thereof binding. A body of ensuing caselaw has leaned largely in favor of arbitration, though lower court splits lead to some matters, like Epic, making their way to SCOTUS.
Epic actually involves the employees of three companies: Epic, Ernst & Young, and Murphy Oil USA. The employees of each signed employment contracts, contained within all of which was an agreement to settle employment disputes via individual arbitration; that is, one-on-one, not group action. Under various theories, the employees of the three companies found themselves aggrieved by alleged underpayment of wages. Each filed federal lawsuits, attempting to create class actions against their respective employers. Each employer filed a motion to enforce arbitration, citing the individual arbitration clause of the employment contracts.
The employees in Epic rely upon the “saving” clause of the FAA, in which the Act dictates that written arbitration agreements are valid and enforceable, “save upon such grounds as exist at law or in equity for the revocation of any contract.” The employees argued that the dictates of the FAA were overridden by the National Labor Relations Act (NLRA), which guarantees employees the right to unionize and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”. Thus, they argue, the contractual provision which denies the right to class-actions over wages and working conditions is violative of the NLRA and cannot, therefore, be upheld under the FAA. The employees maintain that the provision of their contracts waiving their rights under the NLRA are unenforceable.
The SCOTUS majority led by Justice Gorsuch disagreed in its statutory reading, opining that collective litigation is not covered under the “concerted activities” portion of the NLRA. The marjority interpreted that provision as applying to collective bargaining and union activities. In a vigorous dissent joined by Justices Breyer, Sotomeyer, and Kagan, Justice Ginsberg argues that the FAA can not be used to strip workers of their NLRA rights, of which she counts collective litigation, in boiler-plate, take it or leave it contracts. To be sure, these are not bilaterally negotiated contracts, in most instances, but a “sign this or feel free to find work elsewhere” ultimatum.
The 27 page opinion and concurrence and its accompanying 35 page dissent are much more nuanced than this summary endeavors to be; however, the ruling invokes issues of labor unions, privity of contract in the post-Lochner era, and, for those inclined to enjoy such things, statutory construction.
Predictably, reactions on social media were mixed, with some lamenting the ruling as a devastating blow to the American worker:
Neil Gorsuch’s first major opinion is a decision allowing bosses to steal wages from their workers https://t.co/g509OeqPHJ pic.twitter.com/arDUmtvgtG
— ThinkProgress (@thinkprogress) May 21, 2018
The majority in *Epic Systems v. Lewis* uses the Federal Arbitration Act as a battering ram to crush the collective action protections of the National Labor Relations Act. Attributing this injustice to Congress won’t wash. https://t.co/cnw9e4U72O
— Laurence Tribe (@tribelaw) May 21, 2018
Some saw an opportunity to advance their cause:
Today’s #SCOTUS ruling in the Epic Systems v. Lewis case goes to the heart of why America Needs #Union Jobs. Let’s stand with working people and their families https://t.co/d3nsbNImwV
— SEIU (@SEIU) May 21, 2018
After today’s Epic Systems decision by SCOTUS, a major employer-side law firm posted a DIY Arbitration Agreements tool. Expect to see a lot more of this #EpicFail
https://t.co/Pqd516GosA— Moshe Marvit (@MosheMarvit) May 21, 2018
Others hailed the decision as a positive:
Epic Systems is an epic win for free contract over lawyer-driven class actions. Now we who back a modern employment relations system, one that’s based on contract not status, must defend it from the inevitable attempts to overturn in Congress. #SCOTUS https://t.co/gUlyoqXRxL
— Walter Olson (@walterolson) May 21, 2018
To be certain, some will inevitably view this decision as creating a David v. Goliath dynamic, in which mistreated employees seeking redress of unfair employment practices find themselves outmatched by large corporations. Others will applaud the “win” for businesses to avoid protracted and expensive litigation.
In theory, arbitration is supposed to be economical. However, in practice, some critics point to the exorbitant cost to the parties, who must pay the arbitrator, as well as an attorney, if one is used. As Ginsburg points out in her dissent, an employee utilizing the Ernst and Young arbitration program would pay some $200,000 in arbitration fees to recover less than $2000 in unpaid wages, when that sum could be easily recovered for a few hundred dollars in filing fees in small claims court.
The Court’s decision today is inline with its recent history. In 2011, the Court ruled that individual arbitration was enforceable as to consumers in the case of AT&T Mobility LLC v. Conception, in which class action was denied to cellular customers disputing charges for an allegedly “free” phone, because the customers agreed to individual arbitration in their contracts with AT&T.
Undoubtedly, we have all agreed to arbitration when clicking “I Accept” on the fine print of user agreements. While we wait to see whether Congress take any action to address the result reached by the Court, let us use this as a reminder: always read the fine print.
I’d be interested in hearing what major victories were won in the past that wouldn’t be winnable today, under this ruling.
I don’t have context without that.Report
Hmm… the practice of insisting upon individual arbitration clauses in employment contracts is fairly new so I don’t think there’s anything on point historically. The most you could say is that prior labor victories may not have succeeded if these clauses had existed at the time.
A class of employees has a lot more power than a single plaintiff, so maybe labor victories would have been few and far between.
If you don’t want to read all 65 pages, I suggest reading the 3 page syllabus, and the dissent.Report
If this is new enough that it doesn’t change anything, I’m not seeing it as a major victory or loss for anybody.Report
Guess it remains to be seen. But it definitely weakens the position of the employee, in my opinion.Report
Sure. But if we can’t point to any victories they had prior to this, I’m left here being confused some more about how awful this is.Report
@jaybird
https://www.fastcompany.com/40440310/employees-win-very-few-civil-rights-lawsuits
This seems relevant, though I’m not sure who for. Is it “They weren’t going to win anyway?” or “We just went from 1 percent to .01 percent?”Report
Then again it could be “all of the leverage for settlement under terms other than the employer’s dictated ones just went away”.
Ugh, lawsuits.Report
So the old rules resulted in prior restraint on the part of companies and that prior restraint is now gone?Report
@jaybird What do you think the article says? As I said, I’m not even sure who it’s arguing for, though it does seem relevant.Report
Well, please understand, I am willing to believe that this is bad. Everybody lined up just right with Team Evil on one side and Team Good just barely outnumbered on the other.
I’m just not immediately understanding *WHY* it’s so obviously awful and asking what has changed is not providing me with answers that lets me nod my head and say “oh, okay, yeah… I can see why this is so very bad then.”Report
@jaybird
I wasn’t trying to win an argument with that link, I was saying, “this seems relevant.” mostly because it talks about how things go from EEOC complaints to lawsuits and where they get arranged along the way. I would be totally fine with you reading it and deciding it means there’s no big deal here. It undermined, rather than bolstered, my conviction of awfulness, I wasn’t being coy.
The reason I think it is obviously awful, is that you have a situation where one party has all the power and another party’s one useful defense against that power has historically been the class action lawsuit. There are a MILLION examples of class action lawsuits against employers, none of them are that big, it’s the cumulative effect that matters. The cumulative effect of employees having collective recourse against employers. Walmart, for example, has decided to settle several such lawsuits rather than risk being exposed to the consequences of a negative court decision. which meant employees who were bullied and coerced, or discriminated against unfairly in the workplace, got some compensation for that. I can’t go digging for links because no single case was that big, so they don’t really float to the top of google right to my waiting hand and I’m too busy working to do more than that… but you’ve *heard* me rant about these kinds of abuses and be pleased when lawsuits were won by employees, in the past. Many times. Starting about 6 months after I moved here.
Making it legal for employees to sign away that right is *a new idea* that employers have had.
It seems quite obvious *to me* that coming up with new ways that employees can’t band together against their massive employers is a problem.
But it also seems quite obvious *to me* that coming up with new ways for people to sign away legal options that they would otherwise be able to do is a problem in general, and should require dramatic amounts of proof that it’s beneficial before being allowed.
You know this about me, yes? Look at how I feel about work-for-hire copyrights that don’t leave the employee with use rights.Report
I’m pretty sure that I’ve signed those before. Not for this company, but for the last two.Report
@jaybird I’m pretty sure you have too, I would imagine that’s part of the reason I know you’ve heard me rant about it before.Report
I also should have pointed out there are two separate issues here: one is the requirement of arbitration as the forum for disputes, and the other is the requirement that it be individual arbitration, abrogating the “strength in numbers” element.Report
This decision is wrong but it is hardly surprising. Republican appointed Judges and Justices seem incapable of finding a binding arbitration clause that they dislike. Walter Ohlson’s tweet is about as unsurprising as humanly possible
I think arbitration is fine when used between relatively equal and sophisticated parties. If corporation A and corporation B want to have a binding arbitration clause in an actually negotiated business contract. That is fine.
They are suspicious to me in the contract of adhesion sense whether it be an employment or consumer.
The cost thing is real. One of the few ways that binding arbitration clauses do get shut down is when they ask the claimant/plaintiff to pay for all or part of arbitration. These costs are usually so high and prohibitive that the binding arbitration clause is seen as being designed to discourage litigation. In my experience, companies that want to keep arbitration end up paying for everything. This gets really expensive. Some companies might even decide that the cost is not worth it. There are still companies out there without binding arbitration clauses.Report
At least here in California where you and I practice, arbitration clauses require that a plaintiff bear no more financial burden to arbitrate than she would bear in a judicial forum. As you point out, even in jurisdictions where that isn’t necessarily an explicit legal requirement, those companies that want to protect the actual practice of arbitrating their employment agreements will voluntarily accept a large portion of an arbitrator’s fees. There is the remedy of fee shifting, of course, but that does tend to deter the filing of cases where a plaintiff’s victory is less than assured at the outset.
As I wrote in another thread, I have prevailed in wage cases (as well as termination cases) before arbitrators. I don’t have any evidence, and I don’t know if any exists, that demonstrates that findings of liability are any less (or more) likely before an arbitrator than a judge or a jury. I am aware that some evidence exists suggesting that the quantum of a prevailing plaintiff’s recovery is lower in arbitration than in court.
But Epic and its companions are not the Slaughter-house Cases. They:
a) do not abolish an employee’s right to participate in union activities;
b) do not abolish class action lawsuits;
c) do not abolish wage-hour laws;
d) do not abolish individual rights of action by employer against employee;
e) do not create a forum so one-sided in favor of the employer that it lacks pretense of fairness;
although they:
f) do foreclose the ability of a court to pronounce significant rulings affecting broad categories of litigants; and
g) do incentivize the privatization of some facets of employer-employee dispute resolution that previously were thought to implicate public interests; and
h) do cement and reinforce the superiority of the employer in the power dynamic within the so-called employment “contract.” (*)
I’d have preferred Justice Garland to have written this case to Justice Gorsuch. It’s not, however, the end of the world. And absent an accumulation of further evidence, it’s not even a license for manifest injustice.
(*) I’ve long thought, and four years ago on these pages argued, that the idea that the relationship between employer and employee is properly considered an anachronistic relic of a bygone and properly-unmourned era of Dickensian legal thought.Report
This is a great insight. I admit to only bare minimum experience in arbitration and only a little more in employment law. I tried to put together a quick and dirty summary here, so much appreciate your thoughts!Report
If I’ve not said so before, I’m very happy to have you on board here, @em-carpenter .
I’ve been the resident Con Law and SCOTUS Geek around these parts for a while but eventually needed to step away a bit to focus more of my life energies on other things. Seeing you pick up that flag and keep on running with it assures me that important this thread of the Ordinary Times project remains vital and current.
A milia gratiarum sunt ex te.Report
Thanks for this, Burt. It helps me conceptualize what’s going on a lot more clearly.Report
The issue I think is that a lot of wage and hour claims are not really worth it unless you can do it as a class action of some sort or another. The cost of litigation and proving is too large compared to the damages.Report
Depends. If you were to entrepreneurially figure out a way to address those issues on a cookie-cutter basis, able to be administered mostly by non-lawyers the way workers’ compensation or personal injury cases are, you might find yourself sitting on top of a gold mine.
Or, if a fair-minded legislator were to convince her colleagues to allocate a greater latitude and budget for administrative entities to oversee and enforce wage actions, might not be so good for the plaintiff’s bar, but it could still be good for the workers.Report
In the discrimination context, I’ve heard that arbitrators go for the employer about 88-12. I don’t know if that is the product of bias and a strong belief in the at-will doctrine, knowing what side spreads bread on your butter, or some other reason. I’ve heard anecdotes about arbitrators getting on do not use lists from Defense firms for favorable Plaintiff rulings but I can’t prove this per se.Report
Really hasn’t been my experience. I won more than I lost with arbitrated termination cases. My experience is only a few data, though, and borderline anecdata at that.Report
I wonder what percentage of the 82% had legal representation?Report
Anecdata and dealing with this from the other side, the discrimination claims I’ve helped defend/overseen the defense of (mostly in arbitration) have tended to be pretty meritless/grasping at straws kind of situations. Better plaintiffs’ lawyers would have advised them to get on with their lives but I guess you don’t get a lot of fees that way.
Interestingly back when I was in private practice the managing partner of the small sketchy firm I worked at refused to pay me my last month’s salary after my quit-firing. I talked to an employment lawyer I knew but ultimately decided to complain to the state Dept of Labor Licensing and Regulation. A call and a letter from them and he paid up.
All that said I agree that arbitration clauses in non-collective bargaining agreements ought to be unenforceable. I’d support legislation to that effect. They’re pure cynicism and I’d never recommend signing one if it can be avoided.Report
Better plaintiffs’ lawyers would have advised them to get on with their lives but I guess you don’t get a lot of fees that way.
My intuition is way off then, because I’d have guess that almost all of these cases would be on contingency.Report
Almost but not always.Report
My guess is the ones where people have a decent case and/or there’s a chance to certify a class against someone with deep pockets are done contingency. What I’ve dealt with have been one-off axe-to-grind situations. Usually the result is a revised severance and settlement that doesn’t net much.
It isn’t really my area of practice though so I’ll defer to Saul and Burt on whats normal.Report
Every case I have done is on a contingency. I’ve seen some hybrid models or asking for upfront deposits so clients have “skin in the game.” Sometimes you settle low and relatively easy. Sometimes high and not so easy. Sometimes you settle low after a battle.
It really depends on the Defendant. A lot of times a Defendants knows they did something wrong and/or the cost of litigation is higher than the cost to settle and you can resolve things without going to arbitration or litigation. Maybe these cases only settle for 5 or low-6 figures but as Burt said, if you find a smart and effective way to do it, that can yield enough income to stay afloat for the higher value cases.Report
Unfortunately, these days, everything is an epic crisis and/or grave injustice of some stripe or another. It’s like everyone finally saw those ‘If you are not outraged, you are not paying attention’ bumper stickers enough times that the idea took fast hold.Report
In this case, “Epic” is also wordplay on the name of the case — Epic Systems Corp. v. Lewis.Report
“always read the fine print.”
Reminds me of the, “I Agree” piece by Dima Yarovinsky here.
I’m not sure what shape the hurt over Merrick Garland will take, hopefully it will be channeled in constructive ways that don’t further erode norms in our democracy – I can see each 5-4 decision like this just aggravating the wound though.Report
I think my feelings on this are like those for the Lilly Ledbetter case. It’s bad policy, but good law, and Congress needs to change the law to get (back?) to a good policy.Report
That is, we need a veto-proof Democratic majority, just as we do to restore the VRA.Report
Or a regular majority and a Dem prez, which is entirely possible starting Jan 2021.
(Eta- the way for Congress to get around Shelby County v Holder is to make *every* jurisdiction subject to pre-clearance)Report
And when the Democrats take over the House in 2020, they’ll be in charge or redrawing districts! And they’ll have computers to help them draw them!Report
Pretty sure that’s done by the states.
So, assuming NC has a Democratic majority in the legislature in 2020 — do you think they’ll get voter data to suppress the white vote?Report
Really? Then the census doesn’t mean much of anything at all. Red states gonna red, blue states gonna blue.Report
Yes, the Census matters. And yes, House districts have always been drawn by state governments using Census data.Report
House districts have always been drawn by state governments using Census data.
The states that started as blue and then turned red as the Democrats proceeded to lose 1000 seats over the elections following 2008 were gerrymandered by state governments that had not yet lost the majority of those 1000 seats.Report
I don’t think you’re really thinking through the timeline here, or else you don’t understand what years are Census and re-mapping years.
2008 was under the old maps, prior to the REDMAP program, and mostly a wash (Texas aside, which took another bite at the apple in 2003ish) as far as gerrymandering was concerned. (The 2000 election was pretty evenly split).
2010 was the Census year. 2010 was a red wave year. A really big one.
This included — very especially included — state legislatures and Governor’s offices.
And it was the 2010-2011 State Legislatures that redrew the maps in response to the Census. (The GOP had 26 state Legs outright, and 29 Governor’s seats. They split control of 6 Legs, I think, with the Democrats holding 15).
And those would be the maps we have today and have had for the last decade.
Which were drawn by the results of the largest GOP wave in decades.
Which is why you saw permanent entrenchment in drawn districts, but a more moderate ebb and flow among statewide districts (like Governor’s and Senate seats) in 2012 and even 2016.Report
So let’s look at the State Legislatures that changed.
Alabama went from Blue to Red.
Colorado went from Blue to Split.
Indiana went from Split to Red.
Iowa went from Blue to Split.
Louisiana went from Blue to Split.
Maine went from Blue to Red.
Michigan went from Blue to Split.
Minnesota went from Blue to Red.
Montana went from Split to Red.
New Hampshire went from Blue to Red.
New York went from Blue to Split.
North Carolina went from Blue to Red.
Ohio went from Split to Red.
Oregon went from Blue to Split.
Pennsylvania went from Split to Red.
Wisconsin went from Blue to Red.
Six states flipped. Ten States shifted (but didn’t flip). This was all in one direction.
When it comes to gerrymandering in general, it doesn’t matter for Montana at all, due to it only having one district in the first place. New Hampshire went from having both its House members being Blue to both of them being Red.
Jeez. I don’t want to go through the rest of the states one by one by one and compare what happened to the representatives in 2010 to what happened following to find a perfect representation of exactly how much damage was done due to gerrymandering and how much happened to be foretold by demographic shifts… I’d need two monitors to do that and I’m offsite today with just a laptop…Report
You could have simply checked the link I helpfully gave you.
Report
Well, I was going to do the whole weighting thing. See how many of those seats were won in 2010 compared to 2012, 14, and 16. Then compare the seats won in those states to the states that weren’t mentioned (the other 34… not chopped liver!), and compare the seats won in the states that flipped from blue to red to the seats won in the states that flipped from blue to split.
Would we be able to agree that seats lost due to “blue to split” would all fall into the “fair” category while some of the “blue to red” would fall into “unfair”? (But not all because, as we’ve established, there were shifts between 2012 and 2016 and it was computers that allowed republicans to guess as to where these shifts would take place and stealth-gerrymander districts in such a way that stuff would flip for election after election and, surely, some of those are legit flips that are due to shifts rather than unfair gerrymandering.)Report
You mean under two entirely different maps?Report
Not just that. I’d compare the changes (if any) in the states that flipped colors to the states that flipped from blue to split and from split to red. I’d also make comparisons between states that remained red and states that remained blue.
I’d, like, compare all sorts of things. And have numbers!Report
If we are going to have _any part_ of employment law(1) that is based on people bring a private action against employers, then we need to bar arbitration of employment law.
Companies cannot, legally, have employees sign an employment contract saying ‘If we do not pay you as much because you are a woman, you cannot sue us for that.’, however, they can, inexplicibly, have them sign one that say ‘If we do not pay you as much because you are a woman, you cannot sue us for that and instead have to petition this guy we hired to make it right’. (Except they leave that first part out.)
This entire concept is almost utterly nonsensical. Employment law has a whole bunch of rights that employees cannot sign away, and setting it up where they are indirectly signed away because the employee signed away the right to access the court system at all is insane.
If we’re going to allow that, we might as well allow employers to just have all employees sign a contract saying they cannot sue for anything at all and are not legally entitled to any wages. You’ve heard of ‘at will’ employement, but let’s go a step further with ‘as-is’ employment!
Just like buying from a thift store, you show up at work, and maybe, at the end of the day, you get some money. Or not. Maybe you’re treated in accordance with employment law, maybe not. Shrug.
It’s not like we based our entire enforcement system of employment law on the private actions of individuals. I mean, luckily, there’s a huge branch of the government dedicating to enforcing employment law, with undercover sting operations that send employees in to make sure that no one is abusing overtime, or stealing tips from employees, or sending in fake resumes to check for discriminatory hiring practices, or…wait, no, literally none of that exists, and basically all of employment law is enforced by private individuals who have been harmed by violations of the law.
1) I was about to clarify that with ‘except with discriminatory hiring’, because obviously they haven’t signed a contract at that point, until I suddenly realized there is nothing stopping companies from requiring someone to sign an arbitration contract before being considered for a job.Report
But is it the court correct in saying, this is the legislatures mess to fix?Report
Should the court take into account that the legislature is in the pockets of people who don’t want this fixed?Report
Honestly, no. I wouldn’t want the court to decide cases based upon which lobbyists have sufficient influence with the legislature at any given moment.Report
But is it the court correct in saying, this is the legislatures mess to fix?
Here’s a fun question: Would the courts be okay with the legislature saying that disputes _shouldn’t_ be resolved through the courts at all? Like, any of them?
Let’s say that a state, in return for registering to vote, required people to sign an arbitration agreement.
And then the state barred everyone who signed the agreement and was under 21 from voting, in violation of the 26th amendment. (People who did not sign the arbitration and were under 21 we still allowed to vote…of course, they have to _register_ first, and registering requires signing this contract…)
Oh, look at that.
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Now, someone’s about to point out that the Federal Arbitration Act wouldn’t apply to a state, and they are correct. But that’s a ‘current law’ argument, not a ‘constitutionality’ argument. _Could Congress make it apply_?
If so, can the Federal government just instead write a law saying ‘No one may use the court system to correct violations of the 26th amendment?’, and void the 26th amendment?
Can they give everyone $10,000 if they’ll sign something agreeing to never sue the Federal government for violation of their civil rights?
Becuase it sure as hell appears to be so, based on the logic here. If they have the power to let third parties opt out of the courts, they have the power to opt _themselves_ out of the courts.
Now you see the utter nonsense here. The legislature cannot be allowed to just write away the courts.
Basically, I think there are serious constitutional issues with allowing any sort of arbitration over the _actual law_, and, yes, civil law is still law. And that is hugely compounded by the fact that entire sections of US law are basically intended to be enforced by lawsuit. (I would also argue we have a huge problem with out-of-court secret settlements in the same context, but that’s an argument for another time.)
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Arbitration should essentially only exist as an agreement between two _law-abiding_ parties who don’t want to have to keep arguing the terms of a contract in court, and even there I can see some arguments over power differentials.
But while it might (Or not) be reasonable to allow me and my cell phone company to argue exactly what ‘unlimited data’ means to an arbitrator, a dispute over actual terms of the contract, it is not reasonable to require me to take to them _violations of the law_ there, at least not preemptively. (Although it is reasonable for me and them to be able to agree to them when I have the dispute.)Report
This is excellent food for thought.
I have been thinking about what bothers me most and I think it’s the individual part of the individual arbitration clause, when it concerns conditions of employment (pay, hours) which are traditionally the reason for collective action.Report
The whole idea of employers requiring their staff to waive access to the courts is repugnant to me. I’m usually successful at getting them out of client or vendor deals for my company and it says a lot when businesses that force their staff to sign arbitration clauses won’t do it in b-2-b relationships.
I’d still think the outcome was right. Its something for Congress to fix.Report
From Art. 3, Section 2 of the Constitution:
So IANAL, but when you ask,
I’m not sure the answer is what you think.
We’ve been having a long-running dispute in Kansas between the Legislature and the State Supreme Court over school funding. I don’t know the wording here but there’s a clause in the State constitution about sufficient and equitable funding or something, and the Court has been ordering the (Republican) legislature to cough up more/different funding. Last I heard, the Republican leadership was holding all school funding hostage over a bill stripping the courts of jurisdiction in this area.
So, yeah, the US Constitution, and at least some states as well, hold the Legislature supreme in this way.Report
The ‘with such Exceptions’ clause of that has a very weird legal status in that I’m not sure anyone knows what it means.
While that would seem to imply that Congress can invest the Supreme Court’s appellate Jurisdiction somewhere else, the problem is that the Constitution only says Congress has the power to create courts inferior to the Supreme Court: ‘To constitute Tribunals inferior to the supreme Court;’
And it also says ‘The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.’ Note the word inferior again.
Which…if they’re inferior to the Supreme Court, then that means you can appeal their decisions to the Supreme Court. That’s literally what ‘inferior’ and ‘superior’ means in courts. Inferior court decisions can be appealed to a superior court.
Which renders the entire thing nonsense. Or possibly just invents the idea of _heirachical_ courts. Congress can put appeal authority in inferior courts, but things can still be appealed upward from there.
As far as I know, the only people who have argued that appellate jurisdiction can truly be removed from the Supreme Court is via the Legislature removing some of it to _state_ courts. Which is something that sounds incredibly odd to us, but wouldn’t have been that odd a concept back when that was written. (And honestly, I don’t really have an opinion on that. It’s something very unlikely to ever happen.)
It also might be hypothetically possible to remove jurisdiction to some other nation, or sort of international court. Maybe. I’m dubious.
But no one seriously thinks the legislature can create some sort of court-like entity within the Federal government, and grant it all appellate jurisdiction of a certain type of things. It can do that with _original_ jurisdiction just fine, it did exactly that with immigration courts. But it can’t stop people from appealing out of that to the Supreme Court.Report
Rereading that, I feel I didn’t really make a concise argument, so let me teal deer it:
There are things in the law that you cannot preemptively sign away in contracts with people. Such as sexual harassment by employers. Employers cannot put ‘We can sexually harass you’ in their employment contract and prevent all sexual harassment laws from applying to them. (Because allowing that would render all employment law utterly moot, as all employers would just disclaim all of the law.)
However, inexplicably, the courts seem to allow people to agree that violations of those things (Which, again, cannot be legally waived.) can only be decided by people hired by one of the parties if that’s in the contract.
This is completely insane. If the law doesn’t allow something to be waived in contacts in general, it shouldn’t allow it to be ‘still in effect’ but in the hands of someone besides the law, especially in the hands of someone selected and hired by the party that committed the alleged illegal action.
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Arbitration, as a concept, should only exist pre-emptively to cover disputes over the meaning of contracts. If two parties agree in advance to have an arbitrator over a contract, and then one party read it one entirely legal way (You have to pay us by the start of June), and the other party reads it a different entirely legal way (No, we have to pay you by the end of June.), sure, an arbitrator makes sense. The court system sucks for that sort of thing.
But that’s two both-legal interpretations of contract terms, not the entire structure of _outright illegal_ actions that we have basically subcontracted to civil law, and do not allow victims to waive in advance…except via arbitration for nonsensical reasons.Report
The case was decided (as all should be) based upon interpretation of statutes, (though Ginsberg’s dissent shows that there was more than one way to read them.) So yeah, the court basically says it would require a statutory change to reach a different result.Report