Gorsuch Vote Deals Unequal Justice for Workers

      Justice Neil Gorsuch cast the most important vote of his Supreme Court tenure so far in a decision this week [May 14] that consigns 25 million American workers to take workplace disputes with their employers to a quasi-legal system tilted against them. Gorsuch wrote and cast the tie-breaking vote in Epic Systems, Inc. v. Lewis to allow employers to enforce arbitration clauses that prevent workers from banding together in disputes over, for example, alleged violations of federal wage and hour laws.
      For forgotten working class voters in President Trump's political base, this decision is their payoff: argue with your boss over wage theft in arbitration, not in court, and bear the cost and any risk of retaliation all by yourself. In Gorsuch's telling, the employees in these cases all "agreed" to these terms even if, as Justice Ruth Bader Ginsburg noted in dissent, the fine-print terms were in "take-it-or-leave-it" contracts.
      The employees in two of the consolidated cases,  Epic Systems and Ernst & Young LLP v. Morris, went to federal court instead to claim that their companies had misclassified them as professional employees not entitled to overtime pay. In the third case, National Labor Relations Board v. Murphy Oil USA, Inc., Sheila Hobson decided to complain to the NLRB that she was forced to work off-the-clock without pay to monitor prices at rival companies' service stations.
      The employees' claims were far too small to justify an all-out legal war. So they joined with others to try to take on their employers together. No dice, the companies said, citing the clauses that limited any disputes to individual, not class, arbitration,
      The cases posed a seeming conflict between two federal laws: the pro-arbitration Federal Arbitration Act (FAA), enacted in 1925, and the pro-worker National Labor Relations Act, enacted a decade later in 1935. The FAA, enacted to override judicial reluctance to enforce arbitration agreement between businesses, provides generally that arbitration agreements are enforceable just like any other contract. The labor law provides that workers have the right to form and belong to unions, to bargain collectively, and to "engage in other concerted activities . . . for mutual aid and protection."
      In his majority opinion, joined by the other four Republican-appointed conservatives, Gorsuch concluded that class arbitration is not one of the "concerted activities" protected by the labor law. This interpretation comes from a justice who proudly identifies himself as a "committed textualist."
      In this case, Gorsuch imposed a narrow construction to the disadvantage of the complaining workers. Critical observers may recall the controversy at his confirmation about his dissent in the so-called Frozen Trucker Case. In that case, Gorsuch interpreted a trucker safety law so narrowly as to leave a stranded trucker no legal protection against being required to risk frostbite in subzero weather in his inoperable vehicle.
      The advantages and disadvantages of arbitration as opposed to in-court litigation are grist for a long debate, but individual arbitration clearly leaves the complaining worker out-resourced in a dispute with the employer. Gorsuch works in a building with a motto carved in marble above the entrance: "Equal Justice Under Law." In this case, however, the Gorsuch-led majority dispensed not equal justice, but unequal justice for U.S. workers.
      Gorsuch's vote marked the eighth time to cast a tie-breaking vote in a 5-4 decision. The justices vote in conference in order of seniority, so Gorsuch literally breaks the tie in these cases. In this case, eight justices divided down the middle before it came Gorsuch's turn to vote. Yet, in his opinion, Gorsuch said the correct result was "clear.".
      The one typical result in Gorsuch's other tie-breaking votes has been to extend "equal justice" to those least in need of the law's protection and deal out seemingly unequal justice to those in need of the law's benefit. Thus, in two procedurally complex cases, he blocked a Texas death row inmate from challenging his death sentence because of woefully deficient legal representation (Davila v. Davis) and prevented California's public employee pension system from suing Wall Street underwriters for funny figures in a public stock offering (California Public Employees Retirement System v. ANZ Securities, Inc.).
      In a more important case this year, Gorsuch cast the decisive vote in Jesner v. Arab Bank PLC  to immunize foreign corporations from being sued for human rights violations in U.S. courts:in this case, the Jordanian bank that allegedly serves as global paymaster for Hamas, helping to finance suicide bombers and other terrorist attacks. In other cases, Gorsuch helped limit damage awards for prisoners in some federal civil rights suits (Murphy v. Smith) and blocked car dealer service advisors from getting overtime pay (Encino Motorcars LLC v. Navarro). One more: In SAS Institute v. Iancu, he strictly interpreted a statutory phrase to give companies challenging a patent an extra measure of procedural rights.
      Only once has Gorsuch provided a tie-breaking vote to the liberal bloc. In that case, Sessions v. Dimaya, Gorsuch joined in ruling a criminal code provision too vague to be used to mandate deportation of an immigrant with a minor criminal conviction. Oddly, his vote there aligned with his strict approach to statutory construction in disagreement with a more flexible interpretation advanced by Chief Justice John G. Roberts for the four conservative dissenters.
      With 32 cases awaiting decision, Gorsuch is likely to be the tie-breaker in a few more this term. Equal justice for some; for others not so much. As President Trump might say, "We'll see what happens."