Kevin Daley, DCNF

Supreme Court Justices Ruth Bader Ginsburg and Neil Gorsuch are trolling one another in opinion citations.

The high court released an important labor and contract decision Monday, in which the pair owned one another in the margins of their opinions.

At issue in the case are so-called mandatory arbitration clauses in employment contracts. Such provisions require employees to settle disputes relating to wages or benefits with their employers in private one-on-one settings. The proceedings themselves and the arrangements they reach often remain secret.

A coalition of workers challenged the lawfulness of such provisions, arguing they run afoul of the National Labor Relations Act (NLRA) which secures the rights of workers to engage in “concerted activities” for their “mutual aid and protection.” But a majority of the Supreme Court led by Gorsuch disagreed, finding the NLRA does not displace a separate federal law called the Federal Arbitration Act (FAA), which requires enforcement of contractual agreements to arbitrate in all but a few circumstances.

Ginsburg led the four-justice liberal bloc in dissent, blasting the majority for reviving the so-called yellow dog contract, an antiquated and unlawful stipulation once common to employment agreements, which barred workers from unionizing as a condition of employment. In so doing, she accused the Court of regressing to the infamous Lochner-era, a period in the early 20th century in which a pro-laissez faire majority of the Supreme Court struck down a bevy of progressive legislation, like minimum wage laws or laws banning child labor.

Gorsuch found Ginsburg’s ominous diagnosis a little bombastic, and said so in as many words.

“Like most apocalyptic warnings, this one proves a false alarm,” Gorsuch wrote, before citing Harvard Law School professor Laurence Tribe’s 1978 treatise “American Constitutional Law.” “‘Lochnerizing,’” the citation reads “has become so much an epithet that the very use of the label may obscure attempts at understanding.”

Tribe is a leading light of progressive legal theorizing who has become a significant figure in the popular resistance to President Donald Trump. Gorsuch’s dig at Ginsburg’s dissent was meant to sting all the more by anchoring his barb in a treatise written by a prominent liberal.

But Ginsburg responded to the Gorsuch jab in kind. In her dissent, Ginsburg argued the high court has gradually weaponized the FAA through a line of cases expanding the law beyond its original context (contractual disputes between merchants) to allow business to protect itself from its own employees. Monday’s decision, she said, was the bottom of this slippery slope.

“As I see it, in relatively recent years, the Court’s Arbitration Act decisions have taken many wrong turns,” she wrote. “Yet, even accepting the Court’s decisions as they are, nothing compels the destructive result the Court reaches today.” She then cited a passage from Judge Robert Bork’s 1990 book “The Tempting of America” which reads: “Judges live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”

Bork was at the vanguard of a conservative jurisprudential revival, and perhaps the foremost expositor of judicial minimalism during his lifetime. Therefore, it’s particularly spicy to cite Bork while accusing a conservative of expanding judicial power.

Though the Court prides itself on its vaunted comity, relations between Ginsburg and Gorsuch appeared somewhat icy at several junctures of the current term.

The Court will next release opinions Tuesday May 29.

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