Justice Kavanaugh’s first authored opinion as a Supreme Court Justice in Henry Schein, Inc. v. Archer and White Sales, Inc., No. 17-1272, 586 U.S. ____ (2019) further cements the Supreme Court’s stance on arbitration.
Over the years, the Supreme Court has consistently held in favor of arbitration and rejected attempts by parties and the lower courts to ignore binding arbitration clauses. For instance, in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (April 2011), the Supreme Court rejected state laws that attempted to prohibit arbitration for certain types of claims, holding “[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the [Federal Arbitration Act (“FAA”) 9 U.S.C. § 1 et seq.].” More recently, in Epic System Corp. v. Lewis, 138 S. Ct. 1612 (May 2018), the Supreme Court held that arbitration clauses prohibiting class actions in employment contracts were enforceable and were not preempted by the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq.—which guarantees basic rights of private sector employees to take collective action. The Supreme Court reasoned that the FAA and NLRA “have long enjoyed separate spheres of influence . . .” and the FAA is “a Congressional command requiring us to enforce, not override, the terms of the arbitration agreements….”