In a 5-4 decision, SCOTUS has decided to reject one –
OK, OK. I’m no lawyer, nor a Constitutional scholar. I apply common-sense to the law and, I suspect, I come off all wet. Still, this decision annoys me, because it’s part and parcel of the trend towards privatizing justice. Maybe everyone else is making the same point, I haven’t been out reading. But here it is.
– of its precedents, namely the idea that Separate But Equal is a sham. WaPo, among many, has a report on the case:
An ideologically divided Supreme Court ruled Monday that companies may require workers to settle employment disputes through individual arbitration rather than joining to press their complaints, a decision affecting as many as 25 million workers.
The court’s conservative majority said that the 5-to-4 ruling was a logical reading of federal law, and Congress’s preference for using arbitration to avoid costly and time-consuming litigation.
But the decision, involving a wage dispute, was roundly criticized on the left, and advocates said it could make it harder to press other workplace complaints such as discrimination and sexual harassment. …
The combined cases are EPIC Systems Corp. v. Lewis, Ernst & Young v. Morris and NLRB v. Murphy Oil.
Is arbitration a public or private service? It’s private, far as I understand it – and that necessarily renders it an unequal service, for such providers will not, maybe even cannot coordinate in order to find some way to provide equal services.
And that means injustice.
The heart of Brown v Board of Education is that separate facilities cannot hope to provide equal services, especially in an atmosphere of racism. While racism is not relevant to these cases, the same reasoning must apply – or the five justices who formed the majority must explain exactly how mediation service providers hope to provide equivalent services.
The privatization of justice, as we’re seeing here, has two facets.
First, the prioritization of corporate profits over public justice places the important priority of public justice far down the scale from where it should be. From humans to at least dogs, there’s an instinctive recognition of justice – and, yes, dogs do have a rough recognition of when they’re treated unfairly. Humans feel it keenly and resent it keenly.
And injustice alienates the victims from the perpetrators. That’s fine when it’s personal, when it’s some member of government who can be removed and replaced. It’s far more grave when it becomes a settled tenet of law. In fact, it’s a testament of a Court far too concerned with picayune details.
Second, by forcing justice into the private sector, it now becomes subject to the forces natural to that sector. We’ve discussed the mistake of migrating processes from one social sector into another, and this is an analogous mistake. The goal of just decisions will become twisted by the private sector goal of profits. Gradually, the pay of mediators will drop. Their support funds will be “optimized.” Experienced mediators, who may render good opinions initially, will quit in disgust. Their replacements? Inexperienced and biased, perhaps operating on non-mainstream social theories (or, to use technical jargon, they’re damned kooks!).
The results? Nothing too seriously, initially. Some people will be treated unjustly, but with unions in disrepute and the social community in continual flux, no one will organize the mass walkouts required to force firms to remove such noxious clauses from employment contracts.
But remember your history? The cause of the American Revolution wasn’t that minor tax on tea. The cause of the Revolution was the perception that the colonialists were treated unjustly by the English crown. This, too, will be perceived as an injustice – and, if the trend continues, we’ll see another revolution.
Hopefully, it’ll just result in kicking out the clowns who allowed this to happen and the passing of a law that obviates this ruling, and nothing more severe – like riots.
