In His First Supreme Court Opinion, Justice Brett Kavanaugh Favors Arbitration

Justice Brett M. Kavanaugh, left, in November at a Medal of Freedom ceremony at the White House. He delivered his first written opinion to the Supreme Court on Tuesday.

WASHINGTON — Justice Brett M. Kavanaugh issued his first Supreme Court opinion on Tuesday, writing for a unanimous court in a minor arbitration case. His eight-page opinion was crisp and clear.

Only seven of his colleagues were present as he summarized the opinion from the bench. For the second day in a row, Justice Ruth Bader Ginsburg, who is recuperating from cancer surgery, was missing. Chief Justice John G. Roberts Jr. announced that she would participate in the day’s two cases by reviewing the transcripts of the arguments.

The question in the arbitration case, Henry Schein Inc. v. Archer & White Sales Inc., No. 17-1272, was who should decide whether a dispute should be resolved through arbitration rather than litigation. Justice Kavanaugh said arbitrators, rather than judges, should decide whether contracts calling for arbitration applied to the disputes before them.

The case arose from an arbitration contract between a firm that made dental equipment and one that distributed it. The contract called for disputes arising under the contract, with a few exceptions, to be sent to arbitration.

The distributor sued the manufacturer in federal court for what it said were antitrust violations. The manufacturer asked the judge to refer the dispute to arbitration. The judge and an appeals court refused, saying that the usual requirement that arbitrators should decide whether disputes should be arbitrated did not apply when the arguments for arbitration were “wholly groundless.”

Justice Kavanaugh wrote that a federal law favoring the enforcement of arbitration contracts, the Federal Arbitration Act, did not contain such an exception.

“The 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,” he wrote. “When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.”

The distributor argued that sending the dispute to arbitration was a waste of time, as the arbitrator would inevitably conclude that the parties had not intended to submit it to arbitration, just as several judges had.

“Not always,” Justice Kavanaugh wrote. “After all, an arbitrator might hold a different view of the arbitrability issue than a court does, even if the court finds the answer obvious. It is not unheard-of for one fair-minded adjudicator to think a decision is obvious in one direction but for another fair-minded adjudicator to decide the matter the other way.”

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