False dichotomy, meretricious piety, and pay-no-attention-to-that-man-behind-the-curtain misdirection are vital arrows in the quiver of

any lawyer or judge, no matter of what persuasion.

These tricks were on particularly egregious display in Epic Systems Corp. v. Lewis, a 5-4 decision announced Monday in which the

Supreme Court’s conservative majority continued its drive to narrow protection for employee rights. (The opinion, written by Justice Neil

Gorsuch, was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito; the dissent, by

Justice Ruth Bader Ginsburg, was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.)

The issue in Epic Systems was this: Can an employer require its employees, as a condition of keeping their jobs, to submit to individual

arbitration of wage-and-hour and other workplace-condition claims—not only without an option to go to court, but without an option to

pursue even private arbitration in common with other employees making the same claim?

Employees’ objection to a “no group arbitration” clause is that individual arbitration may concern amounts too small to make pursuing

them worthwhile. Thus, these clauses make it easier for employers to maintain unfair or even unlawful employment structures and salary

systems.

The question required the court to interpret two federal statutes—the Federal Arbitration Act (1925) and the National Labor Relations Act

(1935). The FAA says that “a written provision in a contract evidencing a transaction involving commerce” requiring the parties to

arbitrate instead of litigate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for

the revocation of any contract.” The NLRA provides that “employees shall have 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.”

Begin with text: the NLRA states that it is designed to counter “inequality of bargaining power between employees who do not possess

full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership

association.” There is no language like this in the FAA. The best histories of the FAA’s adoption suggest that it was designed to

efficiently settle disputes among merchants—business interests with comparable bargaining power. The Act itself says it should not be

read to affect “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate

commerce.” The sponsors stated during deliberations that it was not designed to cover labor agreements.

Thus, the issue is whether the no-group-arbitration clause, by violating that provision of the NLRA, provides “grounds as exist at law” to

bar the employer-imposed requirement of individual arbitration.

Gorsuch accused Ginsburg, author of the dissent, and the other three moderate liberals—Breyer, Sotomayor, and Kagan—of improperly

consulting their own policy preferences, refusing to harmonize two easily reconcilable federal statutes, and illicitly smuggling extra-legal

commentary—legislative history—into judicial decisions. But this was purest rhetorical Pecksniffery. Gorsuch himself quite cheerfully

invoked a pro-arbitration policy preference; did no more to harmonize the two statutes than did the dissents; and ignored actual history,

and the text of the NLRA, in favor of a spurious extra-legal non-textual narrative of the FAA.