A2J: Neil Gorsuch pens a devastating takedown of his own most important opinion – Ian Millhiser - ThinkProgress

Ian Millhiser, a frequent scourge of the Supreme Court's reactionary rulings, introduces the concept of the Gorsuch Brief - a narrow argument that traps him into ruling in favor of parties for whom he lacks sympathy.  In this case a truck driver - nominally an independent contractor - claimed a minimum wage (Fair Labor Standards Act) violation. The trucking company sought to compel arbitration.

But the 1925 Federal Arbitration Act, 9 U.S.C.  §1 excepts those employees “engaged in foreign or interstate commerce.” So what is interstate commerce?  This is where the "Gorsuch Brief" comes in.  He proclaims that it is the meaning of the phrase at the time that governs.   The meaning then was plainly narrow.  An individual employment agreement didn't constitute "interstate commerce" in 1925.  But when the Supreme Court switched in time and accommodated itself to the Roosevelt New Deal, the meaning of interstate commerce changed.  So the challenge here was to hold Gorsuch and the entire court to the original meaning! of the phrase.  And,mirabile dictu, every member signed on to Gorsuch's opinion for the court.

Millhiser explains quite fully.  In a well documented essay he sets out the sad history of how the Supreme Court has used the Federal Arbitration Act to deny citizens access to the courts.  Read it!  - gwc

Neil Gorsuch pens a devastating takedown of his own most important opinion – ThinkProgress

by Ian Millhiser

The Supreme Court sided with a worker over a corporation in a case involving the Federal Arbitration Act on Tuesday. For those unfamiliar with the Court’s arbitration decisions, that happens about as often as a unicorn wins the Powerball lottery while simultaneously being struck by lightning.

And, as further evidence that Beelzebub awoke this morning to discover thick layer of snow on his lawn, the Supreme Court’s decision in New Prime v. Oliveira was written by Neil Gorsuch — the author of a decision holding that the Arbitration Act permits employers to engage in small-scale wage theft with impunity.

As Slate’s Mark Joseph Stern writes, New Prime “marks the triumph of the Gorsuch brief—a highly technical argument designed to nab the justice’s vote by fixating on the text of a statute and its meaning at the time of passage.” But it is also a hollow triumph. New Prime is an important case because it is one of a few rare examples where this Supreme Court read the Arbitration Act consistently with its explicit text, but it also dealt with a fairly minor issue that carves out a narrow exception to the Court’s decisions enabling wage theft.

In Epic Systems v. Lewis, a much more significant wage theft decision that Gorsuch penned last year, Gorsuch blithely ignored the text of the Arbitration Act — while simultaneously holding that his atextual reading of the Arbitration Act trumps the explicit language of a law enacted to protect workers’ collective action.

Read together, New Prime and Epic Systems show that Gorsuch is willing to follow the text of a statute to liberal outcomes when those outcomes do not significantly burden big business. But when the stakes are high, Gorsuch is happy to set aside the law’s text to serve ideological goals.

Indeed, the reasoning Gorsuch deploys in New Prime is so inconsistent with Epic Systems — and with many of the Court’s arbitration decisions from the last two decades — that a lower court could plausibly argue that New Prime represents a sea change in the Court’s jurisprudence that justifies taking the law in an entirely different direction. There’s little chance that this Supreme Court would endorse such a project. But if Gorsuch wants to be taken seriously as a judge who places the text of the law before his personal politics, he will need to overrule much of the Court’s prior work. 
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