One reason to fear Neil Gorsuch on the Supreme Court

Bruce Maples (bruceinlouisville@gmail.com)
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How Sen. Franken documented the Supreme Court’s corporate bias in his questions of Neil Gorsuch

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Every day corporations force you to actively sign away your rights to due process, and Minnesota Sen. Al Franken fears that form of coercion could get even more entrenched with approval of Neil Gorsuch to the U.S. Supreme Court.

In an extraordinary 21 minutes of questioning during Gorsuch’s confirmation hearing March 22 before the Senate Judiciary Committee, Franken described with detail and example how the fine print in contracts we regularly agree to puts corporations in the driver’s seat if something goes wrong.

“I don’t think that most Americans realize that when they sign up for a credit card, or cable service, or sign an employment agreement or fill out their parents’ nursing home resident agreement, they’re also signing away their constitutional right to go to court,” said Franken as part of his questioning.

Franken first focused his remarks on the clauses in those routine contracts that force disputes into secret arbitration. Then he expanded his concern to how court interpretation of those clauses shifts the balance of justice toward corporations at the expense of everyone else.

“What we’re worried about, is another 5-4 (Roberts Court) making one decision after another, that hurts workers, employees, that hurts consumers,” said Franken. “My colleagues on the other (Republican) side say that we’re making something up over here. We’re trying to really figure out whether we’re going to see a continuation of this pro-corporate bias.”

During the questioning, Franken and Gorsuch exchanged analyses of the United States Arbitration Act, enacted in 1925. Franken said the Roberts Court has expanded that Act in a way that allows the misuse of “forced arbitration.”

As examples, Franken blamed arbitration clauses for:

  • Preventing a Minnesotan serving in Iraq who fraudulently lost his home, from being able to file his suit as a class action;
  • Wells Fargo customers not knowing about the bank opening fake accounts in their name, because the original complaint that might have alerted them was settled in secret arbitration;
  • Broadcaster Gretchen Carlson having to sue former CEO Roger Ailes for sexual harassment rather than suing Fox News, because the forced arbitration clause would have prevented her from speaking publicly.

“When do the principles of fairness and equity apply?” asked Franken. “What does it take for the courts to decide that the outcome is so unjust that it cannot be enforced?”

Gorsuch gave two responses. One, that people could argue in court that the clause in their particular case was unconscionable. Second, that Congress could be urged to “revisit a nearly 100-year-old law, and perhaps rethink the balance between arbitration and jury trials.”

“I’ve done that with my Fairness in Arbitration Act, which I keep introducing,” Franken responded. “My feeling is that the court, through these 5-4 decisions, the Roberts’ court, has changed what the intention of the law was.”

Conventional wisdom holds that Gorsuch is a competent, qualified, nice guy. Franken’s questions revealed a danger in continuing a deliberate drift toward the greater influence of big money.

“There’s a sort of a core group of cases in which the Roberts’ court continually has ruled in favor of corporations and against workers and consumers,” said Franken. He concluded by citing “this bias toward big money and a perversion of our political system like through (the Citizens United case), and where the weight shifts against the little guy and for the big guy. This election was supposed to be about the little guy, but … “

Those ellipses are not a writer’s addition; Franken never finished the sentence. He figured it went without saying that the populist promises of the Donald Trump candidacy are headed in the opposite direction under the Trump presidency.

You can view the second round of Franken’s questioning at https://www.youtube.com/watch?v=i0afC7MnVqU.

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