The Volokh Conspiracy
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Today the Supreme Court issued two opinions, one of which was the first opinion in an argued case written by Justice Brett Kavanaugh. The opinion in Henry Schien v. Archer and White Sales was unanimous (as have been all four other opinions released thus far this term). As is often the case with opinions by junior justices—and first opinions in particular—the case concerns a narrow question, lacks significant political overtones, and was issued without a recorded dissent.
Here is how Justice Kavanaugh described the case in the opinion:
Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract. When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability question—that is, whether their arbitration agreement applies to the particular dispute. Who decides that threshold arbitrability question? Under the Act and this Court's cases, the question of who decides arbitrability is itself a question of contract. The Act allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. 63, 68?70 (2010); First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 943?944 (1995).
Even when a contract delegates the arbitrability question to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the arbitrability question themselves if the argument that the arbitration agreement applies to the particular dispute is "wholly groundless." The question presented in this case is whether the "wholly groundless" exception is consistent with the Federal Arbitration Act. We conclude that it is not. The Act does not contain a "wholly groundless" exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President. When the parties' contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the contract. We vacate the contrary judgment of the Court of Appeals.