Kavanaugh issues first Supreme Court opinion

Case involves straightforward decision on dispute arbitration

WASHINGTON — Justice Brett Kavanaugh issued his first Supreme Court opinion Tuesday, an easy lift for an experienced judge writing for unanimous colleagues in a noncontroversial case.

It involved one company suing another about who decides whether certain disputes should be settled by arbitration. The answer was that an arbitrator, rather than a judge, should make the decision in contracts calling for arbitration.

Kavanaugh’s debut as author came in front of only seven of his colleagues. Justice Ruth Bader Ginsburg, recuperating from cancer surgery last month, remained at home. Chief Justice John Roberts has said she will participate by reading transcripts of the oral arguments and the briefing in the cases she misses.

Kavanaugh’s opinion did not delve into the merits of the dispute between a dental equipment manufacturer and its distributor, or even into the details of the arbitration contract they had signed.

Instead, it looked at whether it was correct for judges to decide arbitrability questions “if the argument that the arbitration agreement applies to the particular dispute is ‘wholly groundless.’”

Kavanaugh said a reading of the Federal Arbitration Act supplied the answer.

“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,” Kavanaugh wrote. “When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the … contract.”

Companies generally prefer arbitration to litigation because it is cheaper and faster, and limits their exposure to large jury awards.

Kavanaugh noted arguments that going to the courts on some decisions was a timesaver because “an arbitrator would inevitably reject arbitration in those cases where a judge would conclude that the argument for arbitration is wholly groundless.” But Kavanaugh said, “Not always.” The case is Henry Schein, Inc. v. Archer & White Sales.