Well into May, U.S. Supreme Court decisions are still emerging at a snail's pace, but it seems lately that at least one ruling every Monday makes headlines. Last week it was sports betting, and this Monday we got the clash over employment contracts and class actions. Here's more analysis and commentary on the Epic Systems ruling, plus a look at some of the cases lining up for next term. And an item on John Marshall, aka the Great Chief Justice. Thanks, always, for reading Supreme Court Brief. We appreciate feedback and suggestions—contact us at [email protected] and [email protected].

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An Epic Win for Business—But Maybe Not for Lawyers?

The Supreme Court's 5-4 decision in the three cases consolidated under the name Epic Systems Corp. v. Lewis was no surprise in the pro-arbitration, anti-class action climate the justices have built in recent years.

But the decision and its impact still hit hard on Monday, with business advocates breathing a sigh of relief and workers' rights advocates praying that Congress will reset the balance in favor of employees. University of Virginia law professor Dan Ortiz, who represented workers in the argument last October said he hopes that “in the not-too-distant future, Congress will correct the court's mistake.”

That's not likely, though, says Mayer Brown partner Andrew Pincus (above), who wrote a brief in the cases for the U.S. Chamber of Commerce and won the 2011 AT&T Mobility v. Concepcion case that laid the groundwork for the Epic decision.

We caught up with Pincus for a brief interview about the ruling…

➤➤ SCB: Soon after the opinion came down, you issued a statement with an eye-catching first sentence: “Today's decision is a victory for everyone but lawyers.” Why do you say that, and don't lawyers usually find a way?

Pincus: Well, I think it's bad for lawyers who are invested in the current system. I've always believed that arbitration for entrepreneurial lawyers provides a way to both make a good living and vindicate more claims for injured employees or consumers or whoever we're talking about. I think to the extent you're invested in the class action system as the way to focus your practice, that will have problems. It always has, but to me the problems are deserved.

➤➤ Arbitration agreements have been an issue in the #MeToo movement. Does the Epic decision have any impact on those companies and firms that are no longer requiring arbitration for harassment claims?

I know a lot of the criticisms are based on the assertion that arbitration prevents a claimant from talking publicly about her claim or would require the arbitrator's decision to remain secret. Neither of those things are true. In terms of this ruling, most harassment claims are individualized, they're not the kind of claims that can be brought in class actions. So, I don't think this has much of an impact on the sexual harassment kind of claims. I'm sure that opponents of arbitration will say the opposite.

➤➤ Looking ahead, Justice Ginsburg in her dissent said it is up to Congress to counter this decision and legislate in favor of worker rights. Do you think that will happen?

As the majority says at the end of the opinion, the latest congressional action was to overturn the CFPB anti-arbitration rules. So I think there's a lot of support in Congress for the idea that given the cause and complexity of the legal system, arbitration is a really useful and important alternative way to resolve disputes.

—> Here are some other comments about the marquee decision:

Fatima Goss Graves, president and CEO of National Women's Law Center: “The Supreme Court has taken away a powerful tool for women to fight discrimination at work. Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft, and more, employees may now be forced behind closed doors into an individual, costly—and often secret—arbitration process. This will stack the deck in favor of the employer.”

Andrew Melzer, partner at Sanford Heisler Sharp: “The court's decision is very disappointing and fails to recognize the basic realities of the modern workplace. Employers divert their employees' claims to individual arbitration in order to deprive them of a remedy for employment claims. The idea that employees are legitimately agreeing to and choosing arbitration is a fallacy; the line of cases at issue is about mandatory arbitration agreements imposed as a condition of employment.”

Richard Samp, Washington Legal Foundation chief counsel: “Arbitration depends on informal procedures for its success. That informality is destroyed if the arbitration is transformed into a class action, as the NLRB demanded for all employment-related contracts. In rejecting the NLRB's position, the Court properly understood that federal law requires courts to enforce arbitration agreements as written.”

Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights: “Allowing companies to force workers to sign pre-dispute arbitration clauses that end their right to band together to take legal action against wrongdoing will sweep many discrimination and harassment claims under the rug. Private arbitration favors corporations over employees and provides no transparency so that other employees can learn about corporate misconduct.”

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Four New Grants: Meet the Lawyers

May 21 at the U.S. Supreme Court was a good news/bad news day for the University of Virginia School of Law's Supreme Court Litigation Clinic. The justices picked up, for the next term, the clinic's petition in Culbertson v. Berryhill, a case that involves how legal fees are awarded for representation of Social Security claimants.

The clinic's Daniel Ortiz filed the petition on behalf of Orlando, Florida, practitioner Richard Culberston who challenges a 25 percent cap on fees for work done both before the agency and in federal court. Ortiz's petition had the good fortune of a switch in positions by the Trump Administration's Justice Department. U.S. Solicitor General Noel Francisco had urged the justices to grant review after deciding that Ortiz's position was the right one.

Now, the bad news: the high court's 5-4 decision in Epic Systems v. Lewis upholding class and collective action bans in workplace arbitration agreements. Ortiz, along with Richard Griffin, former general counsel of the National Labor Relations Board, had argued against the bans. Kirkland & Ellis partner Paul Clement had the winning argument.

The justices also granted review in three other cases Monday:

➤➤ The background to Royal v. Murphy is an unusual capital murder case. Patrick Murphy, a member of the Muscogee Creek Nation, claims Oklahoma did not have jurisdiction to try him for the murder of another tribe member on part of the Creek Nation reservation.

Lisa Blatt (above), a partner at Arnold & Porter, represents the Oklahoma State Penitentiary warden. Her petition asks the justices whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under the federal law giving the United States jurisdiction. Murphy's counsel is Patti Palmer Ghezzi, an assistant federal public defender in Oklahoma City, with an assist by Jenner & Block partner Ian Gershengorn. U.S. Solicitor General Noel Francisco filed an amicus brief supporting Blatt.

➤➤ The justices will tackle a federal preemption question in Virginia Uranium v. Warren. Virginia Uranium, represented by Cooper & Kirk partner Charles Cooper, claims Virginia's 1982 ban on mining of the largest deposit of uranium in the United States is preempted by the federal Atomic Energy Act. Virginia Solicitor General Toby Heytens represents the state. The United States supports the mining company.

➤➤ In Jam v. International Finance Corporation, the justices will decide what rules govern immunity for international organizations—specifically, whether the International Organizations Immunity Act gives them the same immunity that foreign governments have under the Foreign Sovereign Immunities Act. Stanford Law's Jeffrey Fisher brought the petition on behalf of Budha Jam and others. White & Case partner Francis Vasquez Jr. represents the corporation.

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Relocating Chief Justice John Marshall

The Supreme Court will soon be displaying a newly acquired portrait (above) of Chief Justice John Marshall—usually described as the Great Chief Justice. The court plans to hang the new acquisition in a public hallway on the ground floor.

As part of the distribution of the art collection of the now-closed Corcoran Gallery, the court was chosen as the recipient of an oil portrait of Marshall painted by Robert Matthew Sully in 1830.

As with the more than 10,000 works remaining in the collection, there was no charge for the portrait, though recipients pay for packing, transportation and insurance costs. Gallery records indicate that the Corcoran bought the painting for $100 in 1887.

The Sully painting will have company in the building. It will be the third portrait of Marshall in the court's collection. The other two include a circa 1834 portrait by John B. Martin located in the justices' conference room, and another circa 1834 portrait by Rembrandt Peale located in the east conference room of the Supreme Court.

Marshall also pops up in the front of the court on the west pediment and the bronze door, not to mention the Marshall bust in the Great Hall. We've also heard that a bronze medallion relief of Marshall, sculpted by the late chief justice Warren Burger, can be found—or used to be found—on an interior door of the building.

And if that's not enough Marshall love, don't forget there is a large statue of Marshall on the ground floor of the court. By longstanding tradition, lawyers who argue before the court rub his toe, which explains why it shines brighter than the rest of the statue.

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More Supreme Court Reading: Kagan on Switched SG Positions

“Changing positions is a really big deal and people should hesitate a long time over it,” Justice Elena Kagan said Monday at American Law Institute event, according to a SCOTUSblog report. The role of the office, Kagan continued, is “seeing the long-term interests of the United States” and the “credibility of the office depends on judges believing that's what you're doing.”

⬥ The most funny justice this term? Wait for it: Stephen Breyer. That's according to Jay Wexler, the Boston University School of Law professor who used argument transcripts to chronicle “laughter” at the high court. Bloomberg Law has more on the funniest moment from the term. Also don't miss: Lynne Liberato, an appellate partner at Haynes and Boone, recalls her debut argument at the high court in 1993 when she got Justice Antonin Scalia and the rest of the court to laugh.

⬥ Here's our first report on the court's big ruling Monday that said employment contracts barring class actions are lawful. In case you missed it: We looked at the engagement between Justices Neil Gorsuch and Ruth Bader Ginsburg in their dueling majority and dissenting opinions, respectively. Over at CNN, Joan Biskupic has a report headlined “Ruth Bader Ginsburg takes off the gloves.”

⬥ New York and California are moving to brace against the anticipated impact of the Supreme Court's ruling in Janus, the public-sector union fee case, Politico reports.