By and large the U.S. Supreme Court has in recent years traveled a good ways toward employers in relations with their employees. And Trump’s appointees to the Court seem generally sure to continue that trend, as evidenced by a 2018 opinion written by Justice Neil Gorsuch, which was described by Stephanie Russell-Craft as part of the “Supreme Court’s War on Workers”:
On Monday, the Supreme Court dealt a huge blow to American workers, ruling that employers are free to skip class action waivers in mandatory arbitration agreements. Thanks to the Court, millions of American workers will effectively lose their ability to sue their employers.
The case, Epic Systems Corp. v. Lewis, consolidated three disputes in which employees tried to bring wage and hour claims collectively in arbitration. The ruling, written by Justice Neil Gorsuch, is the latest sign that the conservative-leaning Court is intent on throwing the full weight of the law behind corporate interests.
That’s why it was a bit of a shock that SCOTUS, with Gorsuch again writing the opinion, has now delivered a victory to workers facing mandatory arbitration in a different case, as Mark Joseph Stern explained:
On Tuesday, the Supreme Court handed a victory to American workers, ruling unanimously that independent contractors who work in transportation may not be forced into mandatory arbitration. (Justice Brett Kavanaugh, who joined the bench after argument, did not participate.) The decision is a remarkable win for labor rights from a court that typically favors corporate interests over working people. And it will allow hundreds of thousands of contractors to vindicate their rights in court, collectively, rather than in costly and unjust arbitration.
To make a long, complicated story short, attorneys for the trucker in this case succeeded in convincing Gorsuch, and with him the Court, that the 1925 Federal Arbitration Act, which governs this issue, had an exception for workers engaged in interstate commerce who had “contracts of employment,” which in the innocent days of 1925 didn’t exclude “independent” contractors. Again, Stern explains how Gorsuch was brought around:
Together, Public Justice and the Constitutional Accountability Center provided enough arcane evidence to satisfy Gorsuch that, in 1925, the word employment did not distinguish between employers and contractors. The justice’s preoccupation with 1925 linguistics is so extreme that it spurred Justice Ruth Bader Ginsburg to write a brief concurrence noting that Congress can “design legislation to govern changing times and circumstances,” using words whose meaning may “enlarge or contract [in] scope” as society progresses.
So in this case Gorsuch’s famous devotion to “textualism” — an approach to statutory and constitutional interpretation based on deference to the intentions of the drafters — cut for instead of against employees’ interests. It may not happen often, but the outcome of the case does provide a template for those hoping to appeal to this justice and others he influences.