CAC President Doug Kendall: “Today’s majority opinion is judicial policymaking in its most naked form.”

    Washington, DC – On news today that the U.S. Supreme Court handed down a 5-4 decision in favor of AT&T in the consumer arbitration case of AT&T v. Concepcion, Constitutional Accountability Center President Doug Kendall issued the following statement:

    “Today’s majority opinion is judicial policymaking in its most naked form. The Federal Arbitration Act is in no way hostile to class actions, and it specifically preserves a critical role for state law. No plausible reading of the text and history of the Constitution’s Supremacy Clause supports the Court’s ruling in favor of broad preemption of state law in this case.

    In some respects the most disappointing vote is that of Justice Thomas, who has staked out a principled position on preemption, but failed to adhere to his principles in this case. Justice Thomas purports to rely on the text of the FAA, but that text clearly supports the opposite result. While Justice Thomas noted that he ‘reluctantly join[ed] the Court’s opinion’ today, he must know that principles only really matter when a case is on the line and when the Justice would prefer the opposite result as a matter of policy. Justice Thomas flunked that test of principle today.

    As Justice Breyer says in dissent, ‘federalism is as much a question of deeds as words.’ Here, the deed of the Roberts Court majority seems dictated by the policy preferences of the Justices rather than by the words of the statute and the Constitution’s principles of federalism.

    Some have questioned whether a handful of lopsided early Term rulings against the U.S. Chamber of Commerce represented a shift in the jurisprudence of the Roberts Court on corporate issues. With the Court’s 5-4 ruling in favor of AT&T today, the nation got an answer.”

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Resources:

Opinion of the Court in AT&T Mobility, LLC v. Concepcion:http://www.supremecourt.gov/opinions/10pdf/09-893.pdf

Constitutional Accountability Center’s brief filed in AT&T Mobility, LLC v. Concepcion: http://theusconstitution.org/cases/briefs/att-mobility-llc-v-concepcion/supreme-court-amicus-brief-att-mobility-v-concepcion

Constitutional Accountability Center’s comprehensive study, “Open for Business: Tracking the Chamber of Commerce’s Supreme Court Success Rate from the Burger Court through the Rehnquist Court and into the Roberts Court”: http://theusconstitution.org/think-tank/issue-brief/open-business-tracking-chamber-commerces-supreme-court-success-rate-burger

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Constitutional Accountability Center (www.theusconstitution.org) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.

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