Sworn into the Supreme Court on October 27, 2020, the third Supreme Court nominee from President Donald Trump is poised to set a conservative supermajority on the highest court. Justice Amy Coney Barrett, a judge from the 7^th Circuit Court of Appeals, took the seat vacated by Ruth Bader Ginsburg, who had passed away on September 18th. Plenty of news sources have done biographies on the conservative Justice Barrett, particularly about her views on social issues, such as abortion and religious freedom. Beyond her record on social issues and the 2^nd Amendment, Justice Barrett has taken a strong stance on arbitration in her relatively short time on the 7^th Circuit. Justice Barrett’s views on arbitration will certainly set a pro-business, pro-arbitration clause tone for her time on the Court with a conservative supermajority, and her previous writings give the public a glimpse of how she will likely rule on future arbitration-related cases.

Justice Barrett’s academic resume is indeed impressive, with a scholarship focus on originalism, constitutional law, and civil procedure. A graduate of Notre Dame Law School, Justice Barrett is the first person on the Roberts Court to hold a law degree from a non-Ivy League law school.  She previously taught at Notre Dame Law as a faculty member, teaching courses such as Civil Procedure, Constitutional Law, Evidence, and seminars on constitutional and statutory interpretation. Though she taught at Notre Dame Law School for 18 years, Justice Barrett has relatively few years’ experience as a judge as she was appointed to the 7^th Circuit Court of Appeals in 2017, her first judgeship. In her short time on the bench in the 7^th Circuit, then-Judge Barrett wrote two separate majority opinions on arbitration related cases, both of which show her judicial support for businesses and the enforcement of strict arbitration clauses, a trend that may continue during her tenure at the Supreme Court. 

In 2018, then-Judge Barrett wrote the opinion for Herrington v. Waterstone Mortgage Corp. regarding the validity of arbitration clauses to determine a class for a class action lawsuit pursuant to Federal Rule of Civil Procedure 23. The 7^th Circuit Court of Appeals was to decide whether an arbitration clause that stated that all employee claims were to be heard in arbitration. The District Court had invalidated the waiver clause in the arbitration agreement that distinguished class action suits, then ruled for the plaintiff and awarded damages. Judge Barrett’s analysis discusses a recent Supreme Court case, Epic Systems Corp. v. Lewis, which held that waiver provisions like the one in this case are legal, thus setting the framework for this case. By overturning the District court dismissal, Judge Barrett, along with her colleagues on the bench, seem to show a penchant for deference to the Supreme Court, as well as strictly interpreting arbitration clauses. While the District Court decided the signed arbitration clause was only partially valid, the 7^th Circuit disagrees and seems to favor a stronger interpretation and thus a stronger support for arbitration clauses, backed by the Supreme Court. 

This year, before her nomination to the Supreme Court, Judge Barrett once again wrote an opinion supporting strict arbitration enforcement, this time in Wallace v. GrubHub Holdings Inc. Judge Barrett lays out the Federal Arbitration Act clause in contention that employees “engaged in foreign or interstate commerce” are exempt from any mandatory arbitration agreement, as the plaintiffs here argued. The District Court decided in favor of the defendants and held that the FAA clause did not apply. The plaintiffs were therefore required to submit their claims to arbitration. Judge Barrett’s opinion upheld the District Court’s ruling, arguing that the plaintiffs did not fall under the FAA exemption. Just before her appointment to the highest court in the United States, Judge Amy Coney Barrett again upheld strict arbitration clauses that seem to favor businesses and their interests by limiting employee suits where an arbitration clause is involved. 

Certainly, Justice Barrett’s past opinions are fact-specific, and are influenced by a variety of factors, not just her own views toward business arbitration. However, Justice Barrett’s past decisions may offer a glimpse into her future thought process on the Supreme Court. In both decisions, Barrett focuses extensively on the words themselves, looking to the bare meaning of the words on the page to determine her judicial response. Barrett is known for her work as a clerk to the late Justice Scalia and has been open about her adherence to similar judicial philosophies as Scalia, particularly a reverence for the printed words of an agreement. In both of these decisions, Barrett chose the strict interpretation of the arbitration clause, adhering to the direct meaning of the clauses and leaving little room for divergence. In addition, Barrett seems to often take the side of the business rather than the employee in these cases. These are just two cases and are based on specific facts and circumstances, but clearly Barrett believes in giving power to arbitration clauses and businesses that implement them. 

These two decisions from Justice Barrett’s relatively short time at the 7^th Circuit offer an insight into her potential future rulings in arbitration related cases on the Supreme Court. Justice Barrett, as the newest member of the Court, is already hearing cases and participating in oral arguments. When arbitration cases inevitably ascend to the highest court, Barrett’s previous decisions may be helpful to scholars and attorneys in anticipating her initial leanings. For businesses and those that incorporate arbitration clauses into employment and transactions, Barrett’s initial views are supportive of the integration of arbitration and seem to be in accord with giving arbitration significant power in resolving disputes. One cannot predict exactly how a Justice will rule on a given case, but Justice Barrett’s past views inform potential parties of her leanings and how the conservative court may rule in arbitration cases in years to come. 

By: Kylie Best, Junior Staffer

Sources:

• https://www.cnn.com/2020/10/27/politics/amy-coney-barrett-joins-supreme-court-unprecedented/index.html
• https://www.judiciary.senate.gov/imo/media/doc/Amy%20Coney%20Barrett%20Senate%20Questionnaire%20(Public)%20(002).pdf
• https://www.fisherphillips.com/resources-alerts-what-employers-need-to-know-about-scotus
• https://www.pfaw.org/blog-posts/confirmed-judges-confirmed-fears-trump-circuit-judge-amy-coney-barrett-throws-out-claim-of-unfair-arbitration-despite-dissent-by-reagan-appointee/
• https://www.businessinsider.com/who-is-amy-coney-barrett-positions-judicial-history-supreme-court-2020-9
• https://www.cnn.com/2020/10/11/politics/amy-coney-barrett-opening-statement/index.html