The Constitutional Accountability Center recently released the fifth installment of its year-long series, “Roberts at 10,” in which Brianne Gorod details the ways Chief Justice John Roberts’ voting record has undermined the public’s access to the courts. She points out that Roberts has consistently taken positions limiting the scope of the standing doctrine, heightening pleading requirements, restricting exceptions to state sovereign immunity and expanding arbitration. In fact, as Gorod notes, the Chief Justice has sided with the majority in every significant decision bolstering mandatory arbitration agreements, while every case expanding access to the courts has received his emphatic dissent.
This restricted access to the courts, and in particular the expansion of arbitration as a mandatory alternative dispute remedy, has had far-reaching negative consequences for consumers and workers. Governed by the Federal Arbitration Act, written arbitration agreements have become a ubiquitous, lurking menace, surfacing to harm consumers again and again and again.
Tucked away in the fine print of credit card agreements, cable television contracts and even employment contracts, forced arbitration clauses are stealthily thrust upon the unsuspecting consumer or employee, denying him or her the fundamental right to bring grievances before a judge. Instead, complaints are required to be brought before an arbitrator who is paid for by none other than the defending party. Needless to say, arbitrators rarely bite the hands that feed them.
The Roberts Courts’ embrace of the Federal Arbitration Act has helped spur consumer protection initiatives as well as executive action in defense of regular Americans who do not have the resources to stand up against corporate behemoths. Further, as word about these insidious arbitration clauses spreads and consumers become more educated, corporations are finding themselves backtracking due to public opinion.
Nevertheless, worker and consumer advocates argue that the Supreme Court should be the last line of defense against forces seeking to prevent citizens from accessing justice through the courts. As consumers become increasingly aware of these tactics, and as legislators realize the need to protect access to justice, the Roberts Court may find itself, once again, a step behind the curve.