Newly minted Supreme Court Justice Brett Kavanaugh released his first opinion Tuesday, a unanimous decision in a case about federal arbitration.
The case, Henry Schein, Inc. v. Archer and White Sales, Inc., concerns rules of enforcing arbitration clauses in contracts. This sort of dry issue is generally given to a new associate justice for his first opinion. Justice Neil Gorsuch, for example, first wrote on rules governing disputes over debt collection.
Both Kavanaugh and Gorsuch's opinions were joined unanimously by their eight colleagues. This is standard practice at the court, signaling solidarity among the often-fractious judicial branch.
At stake in Schein was a disagreement about who arbitrates arbitration. The parties—both purveyors of dental equipment—had a preexisting arbitration agreement to settle disputes, except in certain excluded circumstances. When such a dispute arose, Schein asked the District Court to refer it to arbitration under the Federal Arbitration Act, while Archer & White insisted that their contract stipulated the matter be settled in court.
The question in Schein was not whether or not the dispute should be referred to arbitration, but who got to decide if it should be—the District Court or an arbitrator, whose right to decide was provided for in the contract's language. The District Court found that Schein's call for an arbitrator was "wholly groundless," a decision upheld by the Fifth Circuit.
In their unanimous ruling, Kavanaugh and his colleagues disagreed. This "wholly groundless" exception, Kavanaugh wrote, flew in the face of both the Federal Arbitration Act and Supreme Court precedent, both of which require in general deference to contracts as written.
"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,'" Kavanaugh wrote. "The [Federal Arbitration 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."
Kavanaugh also voted in Tuesday's ruling in Culbertson v. Berryhill, joining his colleagues in a unanimous opinion written by Justice Clarence Thomas. He has further participated in two per curiam (i.e. unanimous and unsigned) opinions thus far this term.
While he has not sounded off in any non-unanimous decisions thus far in his first term, Kavanaugh has already broken with his colleagues on decisions to grant cases hearings at the court. Notably, he joined the court's liberal justices and Chief Justice Roberts in denying certiorari in Gee v. Planned Parenthood of Gulf Coast Inc., a denial that attracted attention for Thomas's fiery dissent.
As Kavanaugh steps up into the role of associate justice, another of his colleagues remains absent. Justice Ruth Bader Ginsburg was unable to participate in oral arguments on Monday or Tuesday, with the Court announcing that she will instead participate in votes based on subsequent transcripts. Ginsburg, 85, is recovering from lung surgery in December.