Last week, the Supreme Court granted petitions for certioriari in Epic Systems Corp. v. Lewis, Ernst & Young v. Morris, and NLRB v. Murphy Oil USA. All three cases involve clauses in arbitration agreements that require employees to waive their rights to pursue class and collective actions.
In theory, the Supreme Court will resolve a split between federal circuits and determine if employees can be compelled to litigate claims individually rather than in a class or collective action. However, because Justice Scalia’s seat remains vacant, it is possible that the justices deadlock. In that case, the decisions of the circuit courts will be affirmed in each case and the split between the circuits will remain.
President Trump has a short list of potential nominees, but has not yet put forward a nominee for Justice Scalia’s seat that has been vacant for nearly a year. It is unclear whether President Trump’s eventual nominee will be confirmed before these cases are decided.
In light of the Republicans’ steadfast refusal to even consider President Obama’s nominee Merrick Garland, Democrats are vowing to fight any Trump nominee. It’s possible that the fight will be drawn out in addition to being nasty. In order to overcome a filibuster that could block a vote on the nominee, Republicans would need 60 votes. There are only 52 Republican senators. Assuming every Republican votes for the nominee, some Democrats will have to jump ship before the GOP can obtain the votes needed to defeat a filibuster.
We will be keeping an eye both on the composition of the Supreme Court and these cases.