Each interpretation has its merits and its problems; Gorsuch, however, refused to concede any merit, or even simple good faith, to the other side. The employees and the National Labor Relations Board were attempting a “interpretive triple bank shot,” which was “enough to raise a judicial eyebrow.” The NLRB’s argument wasn’t worth refuting, because it was the product of “an agency eager to advance its statutory mission” and “diminish [a] second statute’s scope in favor of a more expansive interpretation of its own.” When Ginsburg’s dissent suggested that the contracts at issue are “yellow dog” anti-labor contracts, specifically outlawed by another statute, the Norris-La Guardia Act;, Gorsuch’s condescending response: “Like most apocalyptic warnings, this one proves a false alarm.”
Gorsuch began and ended the opinion with the same statement: “The policy may be debatable but the law is clear.” Why repeat this twice? It smacks of judicial unease: No, really, we are right, we know we’re right, why won’t you admit we’re right? In fact, the reverse—unclear law, clear judicial policy preference—seems closer to the truth. The NLRA’s explicit pro-labor policy is not beloved of the judicial right; the FAA’s imaginary pro-arbitration policy is.
In her dissent, Ginsburg questioned the majority’s framing of the issue. It is, Gorsuch had written, whether “employees and employers [should] be allowed to agree” on individual arbitration clauses. Are these contracts really mutual agreements, or are they imposed on workers? “The Court ignores the reality that sparked the NLRA’s passage: Forced to face their employers without company, employees ordinarily are no match for the enterprise that hires them.” Many of the particular clauses involved in this case, she noted, were emailed to employees already on the job, with a statement that “continued employment would indicate their assent.” In other words, the “agreement” was, in effect: You have taken a job and now count on it to support yourself; mutely consent to new our conditions right now or security will escort you to the parking lot.
As numerous studies and amicus briefs made clear, the court’s decision in Epic Systems will inevitably lead to an explosion of these imposed contracts. This, Ginsburg wrote, will lead to “the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.”
Her opinion closed with a foretaste of the next battle in the majority’s arbitration offensive: “It would be grossly exorbitant to read the FAA to devastate Title VII of the Civil Rights Act of 1964”—which covers sex discrimination on the job.
Exorbitant? Perhaps. But today’s majority may not see it that way. Why would they stop now? They are armed with their policy preference; and their precedent; and—since the partisan annexation of Gorsuch’s seat—the most important argument: five votes.