FREE MARKET JUSTICE

Posted in Rants on June 28th, 2010 by Ed

There's not much I'd like to do less than to start writing up a Supreme Court case on a weekly basis. Two weeks ago the Court dropped Berghuis v. Thompkins on us, quietly ruling that Miranda rights must be positively invoked to protect arrestees from making incriminating statements. That was my Supreme Court fix for the first half of the year. But now, with absolutely no attention whatsoever from the media, the Court has made another incredibly tone-deaf (and 5-4) decision in favor of, well, not you.

Despite all of the condemnations of corruption and dedication to the moneyed interests among our elected leaders, the 5-vote conservative (ahem, "strict constructionist") block on the current Court is without a doubt the most reliable servant of Corporate America in our Federal government. Citizens United v. FEC made it clear several months ago that "public interest" was a figment of popular delusions in the opinions of Alito, Scalia, Clarence "What Anton Said!" Thomas, Roberts, and the "moderate" Anthony Kennedy. They live in a sterile fantasy world in which corporate rights and individual rights counterbalance one another, as though the two opposing sides are equally powerful.

Has anyone heard of Rent-a-Center v. Jackson? Anyone? I didn't think so. Let's take a brief look at this masterpiece of Bush-era conservative thinking, this window into Anton Scalia's mind.

The facts of the case are not fundamentally important. Mr. Jackson sued his former employer, Rent-a-Center, for discrimination on the basis of race. What is relevant is that as a condition of his employment Jackson signed an arbitration agreement at the time of hire, as do all Rent-a-Center employees. The agreement stipulates that charges against the employer are decided by an arbitrator – in short, the employees essentially surrender their right to pursue claims of discrimination, harassment, etc. in state or Federal courts. You know, just the basic "Sign here to waive certain constitutional rights" paperwork.

There's nothing illegal about such an agreement. But under the Federal Arbitration Act, employees can still ask a Federal court to rule on the fairness of their arbitration agreements themselves. In other words, "I was forced to sign this in order to get the job" is not a valid argument, but employees could petition the Federal courts to invalidate agreements that are grossly unfair, including those that charge punitive fees, mandate arbitration hearings in distant, remote locations, or allow employers to choose an arbitrator that is clearly a kangaroo court paid handsomely to rule in the Boss's favor.

Sounds reasonable, right? Your employer gets to screw you by forcing you to sign away rights as a condition of employment but at least the law throws Joe Public a bone and lets him use the courts to ensure that he receives somewhat-kinda-slightly fair privatized justice. Just about everyone can agree about that. Everyone except America's employers and five important people in Washington.

The Scalia-authored opinion rules that is legal for arbitration agreements to stipulate that challenges to the fairness or legality of the arbitration process must be decided in arbitration. So if your boss chooses Dewey, Fuckem and Howe as the arbitrator for your claim – and you happen to notice that DFH has a flawless 100% record of siding with the employer – your challenge to the fairness of the arbitration process is heard…by the arbitrator in question. Scalia's logic, as usual, is something along the lines of "Well no one puts a gun to your head and forces you to sign the agreement." Good point, Anton. We'll just move on to one of the dozens of other jobs we have waiting for us.

Aside from the very troubling idea that employers can exploit the power imbalance inherent in employment to force their workers to waive their right to access the courts, this decision waves a bright green light in front of corporate America, practically begging them to divert their employees into the privatized pseudo justice system of for-profit arbitration. Even better, it lets them know that they can feel free to establish their own phony arbitrator or patronize an existing one with a reputation for delivering in exchange for its fee. Without access to the courts to challenge the fairness of the process, the arbitration doesn't even have to put up the pretense of fairness or impartiality. They can walk into the meeting with a giant flashing sign reading "YOU LOSE" and there's nothing you can do about it now as long as the agreement is worded to redirect all of your legal challenges to the arbitrator.

So goodbye Federal Arbitration Act. Striking down laws isn't activist when right-wing sycophants do it. Activism or not, any decision that whittles away at the few assets individuals have to protect themselves in the course of their employment is A-OK with Anton and the boys.