May 29, 2019 Articles

The Supreme Court Embraces Statutory Originalism

Everything old is new again.

By Steven B. Katz

The two newest justices on the U.S. Supreme Court delivered its two newest arbitration decisions this past January. While the cases are a “split” in the arbitration wars—one for the proarbitration side, one for the antiarbitration side—they speak with one voice on statutory interpretation: “statutory originalism” is now the Court’s philosophy of interpretation. This has serious implications for employment law.

1–1 in the Arbitration Wars

First came a win for arbitration proponents. In Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524 (2019), Justice Kavanaugh wrote for a unanimous court that when the parties to an arbitration agreement delegate “gateway” arbitrability questions to an arbitrator, the courts must send the dispute to arbitration even if it is indisputably inarbitrable. Although the Court previously held in Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010), that parties may delegate gateway arbitrability questions to an arbitrator as long as there is “clear and unmistakable” evidence of the delegation, some circuits have held that a district court need not honor a delegation if doing so would be “wholly groundless” because the underlying dispute was clearly inarbitrable. Kavanaugh rejected the idea that a “wholly groundless” exception could be read into the Federal Arbitration Act (FAA). First, he explained, courts, as always, “must enforce arbitration contracts according to their terms.” Second, “[w]e must interpret the Act as written”—and as “the Act contains no ‘wholly groundless’ exception, . . . we may not engraft our own exceptions onto the statutory text.” 

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