The Supreme Court just released its decision in New Prime v. Oliveira (click here for a copy of the decision), and as I predicted after oral argument, this case is a win for workers. I believe this is the first time in decades that the Supreme Court has cut back on its expansive readings of the Federal Arbitration Act. Under this new decision, a court should decide for itself whether §1’s “contracts of employment” exclusion applies before ordering arbitration, even if the arbitration agreement contains a delegation clause. Also, “contracts of employment” refers to any agreement to perform work, regardless of whether the worker is an independent contractor or employee.
I participated as an amicus in the case. In my historical research about the FAA, I found “contracts of employment” from the 1920s referring to independent contractors. Also, I believe the original intent of Congress was that the employment exemption should apply to ALL workers under the statute, not just transportation workers. The Court’s 2001 decision in Circuit City is deeply flawed. Today’s New Prime case does not overrule Circuit City, but the decision is still a good win for workers. I’ve heard of the metaphor of a pendulum used to describe historical shifts in arbitration law, and for the last few decades of expansive Supreme Court decisions in this field of arbitration law, the pendulum has been at one extreme. With this New Prime decision, perhaps the pendulum is beginning to swing back, if ever so slightly.
Does anyone have any idea what Justice Ginsburg was getting at in her concurrence?
Her concurrence was a reaction to the strong originalist/textualist views in the main opinion. Because the majority was employing a very strong textualist and originalist argument, focusing on the meaning of the text in 1925, I believe Ginsburg wants to caution that originalist/textualist arguments are not always appropriate for every setting. In some circumstances, Congress may intend words to change based on changes in other laws or society, and for the Constitution, its text may be interpreted flexibly under a progressive judicial philosophy.