Earlier this weekend, as expected, President Trump nominated Judge Amy Coney Barrett to replace Justice Ginsburg on the Supreme Court. During Judge Barrett’s short tenure on the Seventh Circuit, she wrote a few FAA opinions, and these opinions show that she is a textualist and disciple of the late Justice Antonin Scalia, for whom she clerked. And like the conservative Justices she may be joining, she does not appear to be a fan of class actions.
In Wallace v. Grubhub Holdings, Inc., 970 F.3d 798 (7th Cir. 2020), Judge Barrett’s textualist approach is on full display. She states that “[a]s with any question of statutory interpretation, our inquiry begins with the text.” This case involves the exemption found in section 1 of the FAA, and litigation over the exemption seems to have increased following the Supreme Court’s New Prime decision In describing this exemption, Judge Barrett observes there are 3 categories of workers who are exempt, and she tracks the language of the statute in her description. While many other judges simply refer to this provision as exempting “transportation workers,” Judge Barrett’s description is more detailed and carefully breaks down the provision into three categories of workers while tracking the language of the FAA. In her opinion, she also quotes from Justice Scalia’s book about interpreting laws, “Reading Law: The Interpretation of Legal Texts.”
Ultimately, she concludes that a person, to fall under the FAA exemption, must demonstrate that the interstate movement of goods is a central part of the job description of the class of workers to which the person belongs.
In Herrington v. Waterstone Mortg. Corp., 907 F.3d 502 (7th Cir. 2018), Judge Barrett wrote an opinion finding that courts, not arbitrators, must generally evaluate contracts to determine whether the contracts permit class or collective proceedings. She is not rocking the boat with this conclusion, as her decision joins the ranks of other federal appellate circuits in reaching the same conclusion.
Some of Judge Barrett’s statements in the Herrington opinion caught my attention. In reaching the conclusion that courts must resolve this issue regarding class procedures, Judge Barrett cited Justice Scalia’s observation in Concepcion, that the switch from bilateral to class proceedings is fundamental. Perhaps tipping her hand and revealing her personal beliefs, she seems to dislike class actions, describing class procedures as involving “reduced efficiency.” With such an attitude against class proceedings, she will fit right in with the other conservative Justices she may soon be joining. Cf. American Express Co. v. Italian Colors Rest., 570 U.S. 228, 252 (2013) (Kagan, J., joined by Ginsburg and Breyer, JJ., dissenting) (“To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.”).
Also, interestingly, in an almost editorializing fashion and perhaps influenced by her own role as an appellate judge reviewing lower court decisions, she describes arbitration as having a “primary detriment”: arbitration’s finality, which arises from the narrow standard of judicial review of arbitral awards. In other words, to an appellate judge like Judge Barrett who is accustomed to reviewing alleged errors from a lower court, the lack of review in arbitration appears to be problematic or a “primary detriment” of arbitration, according to Judge Barrett. I have not previously noticed a judge opine on the “primary detriment” of arbitration as being its finality, and others will disagree with this personal opinion of Judge Barrett. From the different perspective of a party involved in a dispute, finality is often viewed as a benefit of arbitration over litigation. Also, both historically and today, parties have sometimes drafted appellate arbitration procedures if they desire, and thus a more searching review of arbitration awards is possible. One critique of Supreme Court decisions involving arbitration is that the Justices do not appear to have a deep knowledge regarding arbitration or its many forms. In an overly-simplistic manner, they tend to conceptualize arbitration as a homogeneous process, and they sometimes have flawed assumptions or preconceived notions regarding arbitration.
I realize this is a very small sample set of Judge Barrett’s decisions, and these decisions may not be reflective of her other judicial work. But one concern I have, particularly from the Herrington opinion where she labels class proceedings as involving “reduced efficiency” and calls out a “primary detriment” of arbitration, is that I hope she has a greater awareness of her own personal opinions and biases when judging cases in the future.
Ultimately, if she joins the Supreme Court, I expect she will follow in the footsteps of her mentor, Justice Scalia, and cast similar votes, which is not a big surprise. With a penchant for textualism and an apparent dislike of class proceedings, she will find like-minded colleagues with the other conservative Justices.