How the Supreme Court Could Reshape Employment Law

During Neil Gorsuch’s Supreme Court nomination hearing last year, then-Senator Al Franken asked the nominee whether he had read a recent New York Times series about the use of arbitration to thwart consumer complaints against corporations.

Gorsuch said he had. “It made me think about a little bit of history,” he added. “It used to be back at common law that arbitration was disfavored because it was thought that everyone should go to trial, trials were the norm, Seventh Amendment and all that. And then in [1925] Congress passed a law called the Federal Arbitration Act … Congress expressed a judgment that people should arbitrate their disputes. It made a judgment, policy judgment in favor of arbitration, because it’s quicker, cheaper, easier for people.”

Gorsuch’s reading of history is, as we shall see, doubtful; but he was echoing orthodox conservative legal thought. The Federal Arbitration Act, many conservatives believe, is a kind of super-statute, a legal big bang that was intended to transform the court system, changing the very meaning of “Seventh Amendment and all that.” When originally enacted, the FAA was applied mostly to enforce agreements among businesses to settle their disputes out of court. But with the appointment of Justice Antonin Scalia, the Supreme Court’s view of the FAA has expanded. Over the past