The U.S. Supreme Court has decided an extraordinary number of cases under the Federal Arbitration Act in the last half century, a pattern that continues today at the pace of a case or two a year. During this time, Republican presidential candidates have made much political hay out of the Supreme Court, running against the Warren Court’s “liberal activism” by promising to appoint judges who would decide cases more conservatively. In this article, I analyze whether this promise has been fulfilled in the context of the Supreme Court’s FAA jurisprudence by identifying the core principles of judicial conservatism – restraint, fidelity to text, and federalism -- and then applying them to five of the Court’s most significant FAA arbitration cases: Prima Paint v. Flood & Conklin, Southland v. Keating, Gilmer v. Interstate/Johnson Lane, Circuit City v. Adams, and, most recently, AT&T Mobility v. Concepcion. The analysis finds the conservative promise woefully disappointed in the FAA area. Instead, the article contends, the Court has been highly activist as it has used the FAA as pretext to impose its own brand of civil justice reform. Finally, the article concludes by suggesting that FAA arbitration would look very different today had the bellwether cases actually been decided by conservative jurisprudential principles -- much less visible in the dispute resolution landscape but also much more legitimate as a dispute resolution process.
Richard C. Reuben, FAA Law, Without the Activism: What If the Bellwether Cases Were Decided by A Truly Conservative Court?, 60 U. Kan. L. Rev. 883 (2012)