You’d be forgiven if, like me, you did a double-take when the Supreme Court handed down an exceedingly rare victory for workers over corporate interests this month. In an 8–0 ruling (Justice Brett Kavanaugh did not participate), the court affirmed a lower-court decision holding that independent contractors who work in transportation may not be forced into mandatory arbitration contracts. As the unanimous result in New Prime v. Oliveira suggests, and as I argued in my amicus brief to the court, this was an open-and-shut case.
So why did the court review such a straightforward case, only to unanimously affirm the lower court ? It takes four justices to agree to hear a case. Of the 7,000 to 8,000 cases filed in the court each year, at least four justices agree to hear only about 80. Those are slim odds, which means only really important cases or glaring errors get the court’s attention. Indeed, the court’s own rules provide that in considering a petition for certiorari, the court will usually grant a petition only where the decision below conflicts with another federal appellate court or state supreme court over a truly difficult question of federal law, or otherwise presents an important question for federal law that needs to be settled by the Supreme Court.
As I argued in my brief, Oliveira was not that kind of case. There was no conflict among the federal courts of appeal (or any lower courts) on the central question presented and there was no other compelling reason to review it. (Such a “circuit split” did exist on a threshold question, but it was shallow and undeveloped, with only one court ascribing to an outlying view—hardly the type of intractable legal paradox that typically requires Supreme Court intervention.) But at some point at least four justices disagreed, suggesting they thought the court below may have gotten it wrong. Those justices changed their minds. I have a theory why.
The right flank of the court loves the Federal Arbitration Act and looks for every chance to expand it. In a series of partisan 5–4 conservative victories, the Republicans on the Roberts court have morphed that statute into a get-out-of-jail-free card for corporations who fear the even playing field of the jury box. Rent-a-Center v. Jackson (2010), AT&T v. Concepcion (2011), American Express v. Italian Colors Restaurant (2013), and Epic Systems v. Lewis (2018—welcome to the party, Justice Gorsuch): all were 5–4 decision where no liberal justice would join the majority opinion. All made it harder for workers to get their day in court. All, in my opinion, went well beyond the original meaning of the Act when it was passed in 1925.
When the conservatives saw Oliveira, they got greedy: Here was another opportunity to expand the FAA and further squeeze workers out of the courtroom. But when push came to shove, no plausible reading of the law could support it. To save face, rather than “dismiss the case as improvidently granted” (a “DIG” in the court’s lingo and typically something of an embarrassment), Roberts kept the case on the docket, giving a relatively low-stakes win to workers and providing himself some cover against charges, like ones I’ve leveled, that the court’s conservatives are demonstrably biased in favor of corporate interests.
Is that a cynical take? Perhaps it is. Thanks to the court’s unrivaled secrecy, we’ll probably never know for sure. But the only plausible alternative is more cynical still: that a somewhat inconsequential win for workers—and cover for the court’s corporate capture—was the plan from the get-go. Either way, if the Roberts court’s record of 73 partisan 5–4 decisions all in favor of Republican and corporate interests isn’t enough to make you raise an eyebrow when a decision as deeply weird as this one comes along, maybe it’s time to wake up.