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.

Comments

[phattyboombatty]

I’m sure the original concurrence said that “ The discussion in Parts I, II and IV of the Court’s opinion is unnecessary to the result…” Roberts then said he doesn’t agree with respect to Part I, so they decided the easiest way to note his disagreement was just to put the reference to Part I in a footnote and then note that Roberts doesn’t join in that footnote.

[SRG]

FWIW Thomas continued his usual practice of interpreting “precedent” as meaning “sticking to the same dissenting argument that lost previously”.

[LGDaub]

And how often has yesteryear’s lonely dissent become the new precedent? In Thomas’ case, not nearly often enough.

[Sigivald]

When the Court is wrong, it doesn’t stop being wrong because it declared itself right.

By logic like that, if there was another parallel to Raich, you’d be demanding that Thomas let the Commerce Clause apply to non-interstate non-commerce just like he refused to in Raich, “because it lost previously”.

Doesn’t matter that it lost – it’s absolutely correct; the other justices’ desire to Keep The War On Drugs doesn’t give the Federal government plenary powers.

[Judge Magney]

I liked Roberts’s Footnote 1 in his Indian bingo case dissent today.

[Dilan Esper]

https://www.youtube.com/watch?v=do5vXn_Rap4

[Bob from Ohio]

Maybe less BS and issue opinions more quickly and take more cases.

Dissenting from a footnote in a concurrence! Judicial waste.

[Purple Martin]

So you would prefer he record for posterity, his agreement with Part I, when he doesn’t agree?

I appreciate his economy of expression on getting his disagreement on the record, in fewer words than your complaint that he did so.

[Jimmy the Dane]

I know those who are denied to basic right to self defense would like the New York case sooner rather than later. Realistically, their lives are in danger every single day the court drags its feet on forcing states to let law abiding citizens protecting themselves.

[Ridgeway]

I’d love to hear a CA employment lawyer chime in, but (footnote or no footnote) this sounds like a huge development in CA employment law. In most other states, employers are able to contractually insulate themselves from class action employment claims and force (contractually) employees into individual arbitrations.

In CA, PAGA claims were a gaping hole in that defense, and almost made mandatory arbitration clauses counterproductive. I say that because in CA, arbitration can be extremely expensive and the employer is required to pay all the arbitration fees (win or lose). Plus, if the employee wins an employment claim in CA, there is mandatory attorney fee shifting, so it is worthwhile for plaintiff lawyers to take cases even where the dollar amounts are small.

[Frank Drackman]

In other news Ragnar Lothbrok Jr. left California with his Battle Ax “Tyrfing” and Sword “Naegling” and Judge Alito’s Address circled in the DC phonebook (remember phone books?)

[Jimmy the Dane]

Yeah remember when some guy showed up outside of a Justice’s house with a gun and the explicit, expressed purpose of killing said Justice to change the vote of a decision? I almost forgot about it because the media only covered it for like 8 hours.

Also, remember the next day when the Speaker of the House stood up and said no Supreme Court Justice was ever really threatened and giving them additional Secret Service protection was a waste of taxpayer money and then led the House in voting down extra protection? Yeah, that was extra special.

[Sarcastr0]

Something that didn’t come to pass *because the current security system worked*? Jimmy is FURIOUS!

Buncha dead kids? Price you pay for freedom.

[David Nieporent]

Jimmy is furious…ly lying. Pelosi did not say any such thing, nor did any such voting down ever take place.

[Bored Lawyer]

Off topic, but here is another sleeper, ZF AUTOMOTIVE US, INC. v. LUXSHARE, LTD. decided two days ago.

First paragraph by Barrett, in a unanimous decision for the Court, summarizes:

Congress has long allowed federal courts to assist foreign or international adjudicative bodies in evidence gathering.
The current statute, 28 U. S. C. §1782, permits district courts to order testimony or the production of evidence “for use in a proceeding in a foreign or international tribunal.” These consolidated cases require us to decide whether private adjudicatory bodies count as “foreign or international tribunals.” They do not. The statute reaches only governmental or intergovernmental adjudicative bodies, and neither of the arbitral panels involved in these cases fits that bill.

[Bored Lawyer]

The decision will have an obvious effect on arbitration.
Also for those interested in textualism, it has an interesting discussion about how words (here “tribunal”) need to be understood in the context of the rest of the statute.

Standing alone, the word “tribunal” casts little light on the question. It can be used as a synonym for “court,” in which case it carries a distinctively governmental flavor. See, e.g., Black’s Law Dictionary 1677 (4th ed. rev. 1968) (“[t]he seat of a judge” or “a judicial court; the jurisdiction which the judges exercise”). But it can also be used more broadly to refer to any adjudicatory body. See, e.g., American Heritage Dictionary 1369 (1969) (“[a]nything having the power of determining or judging”). Here, statutory history indicates that Congress used “tribunal” in the broader sense. A prior version of § 1782 covered “any judicial proceeding” in “any court in a foreign country,” 28 U.S.C. § 1782 (1958 ed.), but in 1964, Congress expanded the provision to cover proceedings in a “foreign or international tribunal.” As we have previously observed, that shift created “ ‘the possibility of U.S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad.’ ” Intel, 542 U.S. at 258, 124 S.Ct. 2466 (alterations omitted). So a § 1782 “tribunal” need not be a formal “court,” and the broad meaning of “tribunal” does not itself exclude private adjudicatory bodies.1 If we had nothing but this single word to go on, there would be a good case for including private arbitral panels.
This is where context comes in. “Tribunal” does not stand alone—it belongs to the phrase “foreign or international tribunal.” And attached to these modifiers, “tribunal” is best understood as an adjudicative body that exercises governmental authority.2 Cf. FCC v. AT&T Inc., 562 U.S. 397, 406, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011) (“[T]wo words together may assume a more particular meaning than those words in isolation”).

[Noscitur a sociis]

Because then Roberts would have had to write a separate concurrence saying he did think Part I was necessary.

[Noscitur a sociis]

And it would have been published before Barrett’s concurrence, which would be weird.