April 5, 2012

Arbitration and the “Conservative” Court

By Paul Kirgis

With the occasional exception of Justice Kennedy, the Supreme Court’s Republican-appointed Justices are not conservative in any principled sense. They are radicals, willing to cast aside established doctrines and forge new ones in the service of various policy objectives. This tendency is particularly evident in the Court’s constitutional jurisprudence, where from hand guns to campaign finance to punitive damages the Court has eviscerated comprehensive legislative enactments and run roughshod over state lawmakers to promote Republican priorities.

In the constitutional realm, the Court’s activism is limited to striking down statutes and reproving lower courts. But the Court demonstrates its activism in less obvious yet more assertive ways when it interprets legislation. By aggressively reading statutes, the Court can push an agenda in ways that constitutional judicial review does not permit.

That is precisely what the Court has done with its Federal Arbitration Act jurisprudence. In a forthcoming Kansas Law Review article now available at SSRN, Richard Reuben comprehensively deconstructs five of the most important FAA decisions–Prima Paint, Southland, Gilmer, Circuit City, and Concepcion–to demonstrate how they would have come out differently had the Court actually applied conservative legal principles, namely Bickel’s prudentialism, Scalia’s textualism, and Rehnquist’s federalism. As he shows, a genuinely conservative arbitration jurisprudence would have bequeathed us an arbitration system that is both far more limited and far more legitimate. It would also have preserved the access to judicial process that we have, until very recently, assumed was indispensable to the rule of law.

In theory, judicial activism in statutory construction is less damaging to democratic republicanism than judicial activism in constitutional review. After all, Congress can overrule the Supreme Court on matters of statutory construction. The problem is that our current political system–especially the undemocratic, arbitrary, and misused filibuster–make Congressional action nearly impossible. Congress watches, paralyzed, while a radical Supreme Court permits the powerful to exempt themselves from judicial oversight.

 

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