Sen. Al Franken (D-Minn.), who has emerged as a major ally of plaintiffs' lawyers, railed today against Supreme Court decisions on arbitration, which is one of their lobby's top targets. He did not push to elicit Elena Kagan's opinion on the subject.
Franken focused his criticism on two rulings: the 2001 decision in Circuit City v. Adams, which allowed for greater use of arbitration in employment contracts, and last week’s decision in Rent-A-Center West v. Jackson, which determined that disputes over a contract’s enforceability need not go before a judge if the contract itself delegates the issue to the arbitrator.
Both rulings were 5-4, with the more conservative justices in the majority.
“A lot of people are denied their option of going before a court [as a result of arbitration],” Franken told Kagan today at her Supreme Court confirmation hearing.
Their exchange morphed into a discussion of when and how judges should weigh lawmakers’ intent — a key issue in the 2001 ruling, rooted in the Federal Arbitration Act of 1925. Franken quoted congressional testimony given by Herbert Hoover, who was secretary of commerce when the act was passed.
“I really disagree with this case and the way the Court ignored Congress’ intent,” Franken said.
Kagan replied that, in statutory interpretation, the “only thing” that matters for a judge is congressional intent. “When a text is ambiguous, which frequently happens, then I think it’s the job of the courts to use whatever evidence is at hand to determine Congress’ intent,” she said.
She added that among the evidence she would turn to would be legislative history. That is a contrast with Justice Antonin Scalia, who has warned against reading anything into committee reports and other congressional documentation. “The courts have to be careful about looking at legislative history and that what they’re looking at is reliable, but courts should not exclude evidence of legislative history,” Kagan said.
Franken acknowledged that he would not get an answer if he were to ask Kagan whether Rent-A-Center was correctly decided, so he did not ask that question.