Scalia’s Last Betrayal: AT&T Mobility v. Concepcion – Brokenhearted Catholic Lawyer Judson E. Crump

January 18, 1995:

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.

I disagree with the majority at the threshold of this case, and so I do not reach the question that it decides. In my view, the Federal Arbitration Act (FAA) does not apply in state courts. I respectfully dissent.

Allied Bruce Terminix v. Dobson.

April 28, 2011:

JUSTICE SCALIA delivered the opinion of the Court.

…

We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone, supra, at 24, and the “fundamental principle that arbitration is a matter of contract.”

AT&T Mobility v. Concepcion.

One of these statements was made by an honest intellect dedicated to restraining federal power within its original constititutional limits.  The other was made by a dishonest intellect searching for an excuse to rule for the side he liked the best.

Yet both statements were made, or at least agreed to, by the late Justice Antonin Scalia.  What happened during those 16 intervening years?  Did he change his mind?  Did his brain wither and grow feeble?  Was he just tired of fighting the overreach of federal power and decided that, “if you can’t beat ’em, join ’em?”  Did he just have different clerks that ghostwrote his opinions for him?

Any of these things may be possible, but they’re all disturbing.  And the result can’t be denied.  The man who at one time stood constant as a stone for his originalist devotion to the founding fathers’ vision, became somehow more malleable, more willing to compromise his former values, and eventually able to completely reverse course and make a decision that would ultimately do great harm to millions of Americans.

Go ahead and read the actual opinions and you’ll see exactly what I’m talking about.

The Terminix decision is famous because it took the old Federal Arbitration Act (which had largely lain dormant from disuse for many years) and expanded it to say not only that arbitration agreements were enforceable like any other contract (which is what the FAA actually says), but also that it is illegal for any state to enact any law limiting arbitration.  In politics, you often hear people talk about “states’ rights.”  And at one time, Justice Antonin Scalia cared about “states’ rights.”  Case in point: Allied-Bruce Terminix.

Though the SCOTUS wasn’t able to predict it at the time, their Terminix decision created a tidal wave of fine-print arbitration clauses being inserted into every business dealing that the average person enters into in their lives: Want to have internet?  You’re stuck with arbitration.  A car?  Arbitration.  Want to work for a large company?  Arbitration.  Want a bank account?  Arbitration.  Credit card?  Arbitration.

Time would eventually teach us that this explosion of arbitration was really, really bad for ordinary people, because it allowed big businesses to get away with negligence, theft, or even outright fraud and never be taken to court over it.  So the “liberal” justices later decided to change their tune on arbitration.  Once they realized that it was being used to screw over ordinary people, they started ruling against it.  Sure, that’s not intellectually consistent, but liberals justices tend to care a lot less about upsetting precedent.  It’s what they’re all about, in fact.  Judicial activism is the whole problem that most conservatives have with the Supreme Court’s democrat appointees.

But as with so many other things in American civics nowadays, what matters more than principle is what side you’re on.  And so we came, eventually, down to AT&T Mobility v. Concepcion.  In this case, the cell phone carrier falsely advertised free phones, but they were charging people sales taxes on a “free phone.”  Since 5% of $0.00 is $0.00, I don’t understand how that’s possible, but hey, that was what they were doing.  Naturally, they got sued in a class action.

But AT&T had slipped a no-class-action ban into its arbitration contract.  Meaning that if you wanted to sue AT&T for its $5.00 overcharge, you’d have to hire a lawyer and make your own lawsuit.

Obviously, this is never going to happen, which means that enforcing such agreements is basically legalizing frauds that are too small to hire a lawyer for.  4 of the justices realized this and said “No, you can’t do that sort of Rumplestiltskin crap.  This is America.  If you rip 10,000 people off for $5.00 each, you can be taken to court for $50,000.”

But the 5 Republicans said otherwise.  They couch it in much more elegant English and make a few excuses (“class arbitration greatly increases risks to defendants” etc.) but ultimately uphold the fantasy that arbitration is fair, even when it basically leaves consumers with no recourse whatsoever to small wrongdoings.

Of course, much has been written of the unfairness of arbitration elsewhere, so there’s no need to re-write those books here.

My concern here is with Scalia, and particularly how he slowly quit fighting federal power.  How, when faced with cases where the litigants (big businesses) who supported his “team” (the Republican Party) found themselves asking for the expansion of federal power, he lost his principles.  He just gave up.  Unlike his friend, Justice Thomas.

When Scalia died, I heard a lot of mourning, especially from fellow Catholics, about how this justice was a principled, stoic man, a force for good, and a consistent defender of the rights of those fighting federal power.  Maybe with cases involving religion or abortion, he was, even during the last decade of his life.  But not when the power of Uncle Sam was stretched out to protect his favorites.  The record is clear.