# SCOTUS just restored us to Yellow Dog contract days! **URL:** \ **Category:** Great Debates\ **Created:** [May 21, 2018, 3:13pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561 "2018-05-21T15:13:57Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [May 21, 2018, 3:13pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/1 "2018-05-21T15:13:57Z")
I’ll be glad to be shown otherwise, but I’m pretty sure [the recent SCOTUS decision](https://apnews.com/09877f4fcf454c59a74b0d066536d15e/Divided-Supreme-Court-rules-for-businesses-over-workers) just invalidated the Norris-LaGuardia Act and restored us to the 1920s norm of allowing employers to dictate when people can and cannot exercise their free association rights. This is not a good decision for America. > [@](#): > > The justices ruled 5-4 Monday, with the court’s conservative members in the majority, that businesses can force employees to individually use arbitration, not the courts, to resolve disputes. > > The outcome does not affect people represented by labor unions, but an estimated 25 million employees work under contracts that prohibit collective action by employees who want to raise claims about some aspect of their employment. The new guy wrote the majority decision: > [@](#): > > The court’s task was to reconcile federal laws that seemed to point in different directions. On the one hand, New Deal labor laws explicitly gave workers the right to band together. On the other, the older Federal Arbitration Act encourages the use of arbitration, instead of the courts. > > Justice Neil Gorsuch, writing for the majority, said the contracts are valid under the arbitration law. “As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear,” Gorsuch wrote. RBG wrote for the dissent, natch. > [@](#): > > Justice Ruth Bader called the decision “egregiously wrong” and likely to lead to “huge underenforcement of federal and state stautes designed to advance the well-being of vulnerable workers.” Ginsburg said that the individual complaints can be very small in dollar terms, “scarcely of a size warranting the expense of seeking redress alone.” Ginsburg read a summary of her dissent aloud. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 21, 2018, 3:25pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/2 "2018-05-21T15:25:45Z")
Seems like Gorsuch is arguing the law, and Ginsberg is arguing what the policy should be. Since it isn’t the job of the Supreme Court to change laws or set policy, Gorsuch is right and Ginsberg is wrong. But we could have guessed that. Regards, Shodan ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [May 21, 2018, 3:34pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/3 "2018-05-21T15:34:48Z")
> [@Shodan](#): > > … Since it isn’t the job of the Supreme Court to change laws or set policy,… > > Regards, > Shodan Yet many of the cases SCOTUS rules on affirms, modifies or nullifies a law or statute. So it really is their job. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [May 21, 2018, 3:37pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/4 "2018-05-21T15:37:03Z")
What governmental department oversees whether such arbitration follows regs, and who is currently heading that department? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 21, 2018, 3:54pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/5 "2018-05-21T15:54:58Z")
> [@Shodan](#): > > Seems like Gorsuch is arguing the law, and Ginsberg is arguing what the policy should be. Since it isn’t the job of the Supreme Court to change laws or set policy, Gorsuch is right and Ginsberg is wrong. You’ve got the principle right but the outcome reversed. It was Gorsuch and his conservative peers who just rewrote a bunch of laws they don’t like. Ginsberg was arguing that the laws should have remained intact. This was pure judicial activism; conservatives on the Supreme Court writing laws. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [May 21, 2018, 3:56pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/6 "2018-05-21T15:56:40Z")
> [@Shodan](#): > > Seems like Gorsuch is arguing the law, and Ginsberg is arguing what the policy should be. Since it isn’t the job of the Supreme Court to change laws or set policy, Gorsuch is right and Ginsberg is wrong. > > But we could have guessed that. > > Regards, > Shodan Well, _you_ could have maybe, since it seems that you read the part of what Gorsuch wrote that I quoted and just said “well, it must be true”. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [May 21, 2018, 3:59pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/7 "2018-05-21T15:59:29Z")
> [@Little\_Nemo](#): > > You’ve got the principle right but the outcome reversed. It was Gorsuch and his conservative peers who just rewrote a bunch of laws they don’t like. Ginsberg was arguing that the laws should have remained intact. > > This was pure judicial activism; conservatives on the Supreme Court writing laws. That’s my immediate perception, too, **Little Nemo** : they just erased a good portion of Norris-LaGuardia. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 21, 2018, 3:59pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/8 "2018-05-21T15:59:57Z")
> [@Little\_Nemo](#): > > You’ve got the principle right but the outcome reversed. It was Gorsuch and his conservative peers who just rewrote a bunch of laws they don’t like. Ginsberg was arguing that the laws should have remained intact. I have the outcome correct. Ginsberg made no mention of retaining laws, she argued (in the quoted text) only policy grounds. Gorsuch said > [@](#): > > Justice Neil Gorsuch, writing for the majority, said the contracts are valid under the arbitration law. “As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear,” Gorsuch wrote. Regards, Shodan ---
**Author:** ![dropzone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dropzone/32/7515_2.png) [@dropzone](https://boards.straightdope.com/u/dropzone)\ **Post date:** [May 21, 2018, 4:19pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/9 "2018-05-21T16:19:32Z")
> [@Little\_Nemo](#): > > This was pure judicial activism; conservatives on the Supreme Court writing laws. No, no, no! Only liberal judges can practice judicial activism! Haven’t you been paying attention the last thirty years? :rolleyes: ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [May 21, 2018, 4:34pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/10 "2018-05-21T16:34:23Z")
“Yellow dog” contracts prevented an employee from joining a union. The court decision specifically says that it does not address that at all. It merely returns the interpretation of the Arbitration Act to the interpretation that prevailed from 1926-2012. It is an obviously correct opinion. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 21, 2018, 4:47pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/11 "2018-05-21T16:47:03Z")
Call me crazy, but I can’t decide what is going on from that brief article and I’d have to see the actual decision. Does anyone have a link to the text of the decision? My quick google search didn’t find it. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 21, 2018, 4:53pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/12 "2018-05-21T16:53:00Z")
[Here’s the opinion.](https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf) ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [May 21, 2018, 4:54pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/13 "2018-05-21T16:54:59Z")
> [@John\_Mace](#): > > Call me crazy, but I can’t decide what is going on from that brief article and I’d have to see the actual decision. Does anyone have a link to the text of the decision? My quick google search didn’t find it. I think this is it. [PDF](https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf). Regards, Shodan ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 21, 2018, 5:10pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/14 "2018-05-21T17:10:20Z")
Great. Thanks. As usual, it’s pretty dense. My 5 minute perusal didn’t help much. Might need one of our resident lawyers to help decode the reasoning. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [May 21, 2018, 5:23pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/15 "2018-05-21T17:23:07Z")
_"The outcome does NOT affect people represented by labor unions, but an estimated 25 million employees work under contracts that prohibit collective action by employees who want to raise claims about some aspect of their employment._" _…"The court’s task was to RECONCILE_ (existing) _federal laws that seemed to point in different directions. On the one hand, New Deal labor laws explicitly gave workers the right to band together. On the other, the older Federal Arbitration Act encourages the use of arbitration, instead of the courts._" _…"Justice Neil Gorsuch, writing for the majority, said THE CONTRACTS ARE VALID under the_ (existing) _arbitration law. “As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear,” Gorsuch wrote._" _…“Lower courts had split over the issue. The high court considered three cases — two in which appeals courts ruled that such agreements can’t be enforced and a third in which the appeals court said they are valid.”_ If Congress wishes to change existing laws they are free to do so. Based on existing laws, lower courts issued split decisions over this issue. That resulted in the Supremes accepting these cases and issuing their own opinions. Contracts were written, offered, and accepted. The parties originally accepted the fact that business disputes will be settled in arbitration and not the courts. It now appears that at least three employees objected to the wording of the contracts and took the issue to court. And they lost. Ditzy ol’ Ginsburg suggests that federal and state stautes may now, possibly, be under-enforced at some time in the future. Maybe. Unless, of course, they aren’t. It seems to me that Ginsburg wishes to rewrite the contracts for 25 million employees. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 21, 2018, 5:26pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/16 "2018-05-21T17:26:58Z")
I’m not a lawyer, but my high level understanding is that the petitioners contended that the FAA and NRLB were in conflict. The NRLB was passed after the FAA, so the employees that were party to the suit argued the NRLB superseded the FAA, and they shouldn’t be required to go into individual arbitration since that violated section 7 of the NRLB, even though they agreed to arbitration as a condition of employment. The majority opinion held that there is no conflict between the two acts and both are operative. Folks can unionize and collectively bargain, and employers could require arbitration as a condition of employment: > [@](#): > > Seeking to demonstrate an irreconcilable statutory conflict even in light of these demanding standards, the employees point to Section 7 of the NLRA. That provision guarantees workers > > “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U. S. C. §157. > > From this language, the employees ask us to infer a clear and manifest congressional command to displace the Arbitration Act and outlaw agreements like theirs. > > But that much inference is more than this Court may make. Section 7 focuses on the right to organize unions and bargain collectively. It may permit unions to bargain to prohibit arbitration. Cf. 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 256–260 (2009). But it does not express approval or disapproval of arbitration. It does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand. > > Neither should any of this come as a surprise. The notion that Section 7 confers a right to class or collective actions seems pretty unlikely when you recall that procedures like that were hardly known when the NLRA was adopted in 1935. Federal Rule of Civil Procedure 23 didn’t create the modern class action until 1966; class arbitration didn’t emerge until later still; and even the Fair Labor Standards Act’s collective action provision postdated Section 7 by years. See Rule 23–Class Actions, 28 U. S. C. App., p. 1258 (1964 ed., Supp. II); 52Stat. 1069; Concepcion, 563 U. S., at 349; see also Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979) (noting that the “usual rule” then was litigation “conducted by and on behalf of individual named parties only”). And while some forms of group litigation existed even in 1935, see 823 F. 3d, at 1154, Section 7’s failure to mention them only reinforces that the statute doesn’t speak to such procedures. The conflict in this matter seems to hinge on a narrow or expansive reading of the terms in the NRLB, of which there has been conflict even in the last 10 years withing the NRLB positions. I think SCOTUSBlog summaries are superior to most other summaries. [Here is theirs for this case.](http://www.scotusblog.com/2018/05/opinion-analysis-employers-prevail-in-arbitration-case/#more-270296) ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [May 21, 2018, 5:46pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/17 "2018-05-21T17:46:17Z")
> [@Shodan](#): > > Seems like Gorsuch is arguing the law, and Ginsberg is arguing what the policy should be. Since it isn’t the job of the Supreme Court to change laws or set policy, Gorsuch is right and Ginsberg is wrong. > > But we could have guessed that. Let’s assume for a moment that your interpretation is correct in this case. I assume “we could have guessed that” would be a reference to how the court’s conservative faction always exercises commendable judicial restraint and respect for the rule of law. If only. The reality is that so far the Roberts court has been one of the most activist in memory, not the least bit hesitant to reshape policy in order to mold society in the conservative image, and in the process overturning with reckless abandon any laws that get in the way. In _Citizens United_ Roberts cleverly conspired to have the case re-argued in order to greatly broaden its scope, and in the process not only overturned parts of important campaign finance legislation that had bipartisan support, but overruled two previous Supreme Court rulings that had supported it. It was some of the most brazen activism that had ever transpired in the court, although the _Heller_ ruling two years earlier was equally brazen. The Supreme Court had managed for a century to avoid being drawn into making interpretations of the Second Amendment, but the Roberts court had no such qualms. It seems that Scalia had a brilliant insight that had escaped all previous observers, which is that the introductory words to the Amendment, “A well regulated militia being necessary to the security of a free state …” could be ignored, because the Second Amendment had nothing whatsoever to do with militias or a free state, and those words were just decoration. This was of course ludicrous, but the NRA loved it, so it was all good. The point I’m making here is that whenever the conservatives on the Roberts court suddenly develop a deep respect for the rule of law, or constitutional literalism, or a great reluctance to become involved in “policy”, look carefully and you’ll see a conservative policy being advanced. It’s only when progressive laws are being challenged that they’ll run over them like a bulldozer. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [May 21, 2018, 6:01pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/18 "2018-05-21T18:01:59Z")
It seems to me that the larger issue (“policy” seems an inadequate description) is the conflict between the ideals of democracy and the reality of modern capitalism/ industrialism. The left’s ideological stance since the 1930’s has been that the interests of the people need protection against what would otherwise be the overwhelming power of plutocracy; that strict _laissez faire_ would lead to a modern version of serfdom. Thus you have not only labor laws but also things like campaign donation laws. This is I think one of the major unresolved issues of our society. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [May 21, 2018, 6:17pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/19 "2018-05-21T18:17:19Z")
> [@wolfpup](#): > > It was some of the most brazen activism that had ever transpired in the court, although the _Heller_ ruling two years earlier was equally brazen. The Supreme Court had managed for a century to avoid being drawn into making interpretations of the Second Amendment, but the Roberts court had no such qualms. It seems that Scalia had a brilliant insight that had escaped all previous observers, which is that the introductory words to the Amendment, “A well regulated militia being necessary to the security of a free state …” could be ignored, because the Second Amendment had nothing whatsoever to do with militias or a free state, and those words were just decoration. (post shortened) The entire U.S. Bill of Rights was created, written, debated, passed, and ratified to protect certain unalienable rights of individuals (aka THE PEOPLE). The entire BOR protects an individual’s right from the power of the government. The founding fathers did not create a list of nine rights for THE PEOPLE, and one right for the government or any militia. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 21, 2018, 6:37pm UTC](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561/20 "2018-05-21T18:37:41Z")
Folks, this thread is about EPIC SYSTEMS CORP. v. LEWIS. Please drop potential hijacks that are not related to this particular case. [/moderating] [Next page](https://boards.straightdope.com/t/scotus-just-restored-us-to-yellow-dog-contract-days/814561.md?page=2)