WASHINGTON – By tradition, new Supreme Court justices are assigned less-than-blockbuster cases in which to write their first opinions. Associate Justice Brett Kavanaugh’s maiden eight-pager was just such a task.
Barely a month into what could be a decadeslong tenure on the high court, the 53-year-old Kavanaugh issued his first decision Tuesday in a decidedly obscure arbitration case. And unlike his testy, 50-48 Senate confirmation vote in October that followed accusations of sexual assault, it was unanimous.
The ruling reversed an appeals court opinion that had allowed a court to decide whether an issue in a contract between a dental equipment manufacturer and distributor should be decided by arbitration. Announcing his ruling from the bench, Kavanaugh used the word “arbitrability” 13 times.
In the dispute that was argued in late October, the distributor argued that when an issue clearly should not be subject to arbitration, that “wholly groundless” claim can be tossed out by the court. Kavanaugh and his colleagues ruled otherwise.
“The exception would inevitably spark collateral litigation over whether a seemingly unmeritorious argument for arbitration is wholly groundless, as opposed to groundless,” Kavanaugh said. “We see no reason to create such a time-consuming sideshow.”
The decision, which united the court’s conservatives and liberals, also showcased Kavanaugh’s predilection for following the text of statutes and the precedents of the Supreme Court.
“We may not engraft our own exceptions onto the statutory text” of the Federal Arbitration Act, he said.
The Supreme Court’s conservative majority has been pro-arbitration for years, ruling as recently as last May that employers can insist labor disputes get resolved through individual arbitration, rather than allowing workers to join together in class-action lawsuits.
Arbitration agreements are favored by many employers as a way to resolve disputes over pay, benefits and other matters without going to court. In 2017, 54 percent of companies reported using arbitration clauses in contracts. About one-third of the contracts barred workers from banding together.
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