The Epic Supreme Court Decision

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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57 Responses

  1. Jaybird says:

    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

    • Em Carpenter in reply to Jaybird says:

      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

      • Jaybird in reply to Em Carpenter says:

        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

        • Em Carpenter in reply to Jaybird says:

          Guess it remains to be seen. But it definitely weakens the position of the employee, in my opinion.Report

          • Jaybird in reply to Em Carpenter says:

            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

            • Maribou in reply to Jaybird says:

              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

              • Maribou in reply to Maribou says:

                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

              • Jaybird in reply to Maribou says:

                So the old rules resulted in prior restraint on the part of companies and that prior restraint is now gone?Report

              • Maribou in reply to Jaybird says:

                @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

              • Jaybird in reply to Maribou says:

                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

              • Maribou in reply to Jaybird says:


                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

              • Jaybird in reply to Maribou says:

                I’m pretty sure that I’ve signed those before. Not for this company, but for the last two.Report

              • Maribou in reply to Jaybird says:

                @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

  2. Em Carpenter says:

    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

  3. Saul Degraw says:

    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

    • Burt Likko in reply to Saul Degraw says:

      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

      • Em Carpenter in reply to Burt Likko says:

        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

      • Maribou in reply to Burt Likko says:

        Thanks for this, Burt. It helps me conceptualize what’s going on a lot more clearly.Report

      • Saul Degraw in reply to Burt Likko says:

        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

        • Burt Likko in reply to Saul Degraw says:

          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

      • Saul Degraw in reply to Burt Likko says:

        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

        • Burt Likko in reply to Saul Degraw says:

          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

        • Oscar Gordon in reply to Saul Degraw says:

          I wonder what percentage of the 82% had legal representation?Report

        • InMD in reply to Saul Degraw says:

          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

          • Mike Schilling in reply to InMD says:

            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

            • Saul Degraw in reply to Mike Schilling says:

              Almost but not always.Report

            • InMD in reply to Mike Schilling says:

              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

              • Saul Degraw in reply to InMD says:

                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

      • Oscar Gordon in reply to Burt Likko says:

        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

  4. Creon Critic says:

    “always read the fine print.”

    Reminds me of the, “I Agree” piece by Dima Yarovinsky here.

    I took the content of the “terms of service” of the leading online services that we use on a daily basis (including Facebook, Snapchat, Instagram, Tinder etc.). I’ve printed them on a standard A4 wide scroll with a standard legal contract font size and type. After printing this so-called terms, I hanged the scrolls in the gallery at the academy, added the number of words and the time it takes to read each scroll on the floor. My main goal was to emphasize how small, helpless and harmful are we against this giant corporates.

    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

  5. Kolohe says:

    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

    • Mike Schilling in reply to Kolohe says:

      That is, we need a veto-proof Democratic majority, just as we do to restore the VRA.Report

      • Kolohe in reply to Mike Schilling says:

        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

        • Jaybird in reply to Kolohe says:

          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

          • Mike Schilling in reply to Jaybird says:

            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

            • Jaybird in reply to Mike Schilling says:

              Really? Then the census doesn’t mean much of anything at all. Red states gonna red, blue states gonna blue.Report

              • Morat20 in reply to Jaybird says:

                Really? Then the census doesn’t mean much of anything at all. Red states gonna red, blue states gonna blue.

                Yes, the Census matters. And yes, House districts have always been drawn by state governments using Census data.Report

              • Jaybird in reply to Morat20 says:

                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

              • Morat20 in reply to Jaybird says:

                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.

                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

              • Jaybird in reply to Morat20 says:

                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

              • Morat20 in reply to Jaybird says:

                You could have simply checked the link I helpfully gave you.

                All states except Louisiana, Mississippi, New Jersey and Virginia held elections for their state legislatures.[13] Republicans made substantial gains in state legislatures across the nation. Twenty chambers flipped from Democratic to Republican control, giving Republicans full control of eleven state legislatures and control of one chamber in Colorado, Iowa and New York.1[14] Additionally, Republicans gained enough seats in the Oregon House to produce a 30-30 party split, pushing Democrats into a power-sharing agreement that resulted in the election of two “co-speakers” (one from each party) to lead the chamber.[15]

                Six states saw both chambers switch from Democrat to Republican majorities: Alabama (where the Republicans won a majority for the first time in 136 years), Maine (for the first time since 1964), Minnesota, New Hampshire, North Carolina (for the first time since 1896), and Wisconsin. In addition, by picking up the lower chambers in Indiana, Ohio, Michigan, Montana and Pennsylvania, Republicans gained control of both chambers in an additional five states. Further, Republicans picked up one chamber from Democrats in Colorado, Iowa, and New York to split control in those states. They expanded majorities in both chambers in Texas, Florida, and Georgia. The massive Republican victories in legislative races would be widely expected to have a major impact on the redrawing of Congressional districts for the 2012 election cycle.


              • Jaybird in reply to Morat20 says:

                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

              • Morat20 in reply to Jaybird says:

                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.

                You mean under two entirely different maps?Report

              • Jaybird in reply to Morat20 says:

                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

  6. DavidTC says:

    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

    • Oscar Gordon in reply to DavidTC says:

      But is it the court correct in saying, this is the legislatures mess to fix?Report

      • Mike Schilling in reply to Oscar Gordon says:

        Should the court take into account that the legislature is in the pockets of people who don’t want this fixed?Report

      • DavidTC in reply to Oscar Gordon says:

        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.

        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.)

        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

        • Em Carpenter in reply to DavidTC says:

          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

          • InMD in reply to Em Carpenter says:

            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

        • Road Scholar in reply to DavidTC says:

          From Art. 3, Section 2 of the Constitution:

          In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

          So IANAL, but when you ask,

          Would the courts be okay with the legislature saying that disputes _shouldn’t_ be resolved through the courts at all? Like, any of them?

          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

          • DavidTC in reply to Road Scholar says:

            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

        • DavidTC in reply to DavidTC says:

          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.

          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

      • Em Carpenter in reply to Oscar Gordon says:

        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