The Volokh Conspiracy

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Supreme Court

What's Wrong With That Footnote? It's Only Seven Words Long!

Chief Justice Roberts refuses to join a wee little footnote in a Justice Barrett opinion.


Today the Supreme Court decided Viking River Cruises v. Moriana, yet another Federal Arbitration Act (FAA) case. The justices split 8-1 on the judgment, concluding that the FAA "preempts a rule of California law that invalidates contractual waivers of the right to assert representative claims under California's Labor Code Private Attorneys General Act of 2004."

Justice Alito wrote the opinion for the Court, but there was some splintering on the rationale. Justices Breyer, Sotomayor, Kagan, and Gorsuch joined Alito's opinion in full. The Chief Justice and Justices Kavanaugh and Barrett joined it in part. Justice Sotomayor wrote a concurring opinion, and Justice Barrett wrote an opinion concurring in part and concurring in the judgment. Justice Thomas dissented.

Justice Kavanaugh joined Justice Barrett's separate opinion in full. the Chief Justice joined the opinion in part. In fact, he joined all of Justice Barrett's opinion except for a short (seven word) footnote. What could be in that footnote to which the Chief objected? Well, below is Justice Barrett's one paragraph opinion and the offending footnote.

The opinion:

I join Part III of the Court's opinion. I agree that reversal is required under our precedent because PAGA's procedure is akin to other aggregation devices that cannot be imposed on a party to an arbitration agreement. See, e.g., Stolt-Nielsen S. A. v. Animal Feeds Int'l Corp., 559 U. S. 662 (2010); AT&T Mobility LLC v. Concepcion, 563 U. S. 333 (2011); Epic Systems Corp. v. Lewis, 584 U. S. ___ (2018); Lamps Plus, Inc. v. Varela, 587 U. S. ___ (2019). I would say nothing more than that. The discussion in Parts II and IV of the Court's opinion is unnecessary to the result, and much of it addresses disputed state-law questions as well as arguments not pressed or passed upon in this case.*

And the footnote:

*The same is true of Part I.