I noted how odd that the folks who were all upset about the Affordable Care Act ("Obamacare") were paying no attention at all to Supreme Court Inc.'s far more radical steps into post-Constitutional law in the area of turning state governments into legal nothings.
Essentially, since Justice Rehnquist, the main thrust of Supreme Court Inc. has been to dispense with states entirely and turn the US into a single, monolithic entity where corporations are free to to locate in and claim the legal protections of the most backward states, while using a pre-Depression statute, the Federal Arbitration Act, in ways that its authors and courts never imagined it would be twisted.
Thus, since the 1970s, Supreme Court Inc. has moved to turn real people -- the ones whom the Founders who drafted the Constitution thought government was supposed to serve and protect -- into faceless non-entities who, in any conflict with corporations, should and almost always do lose.
The apogee (so far) of the Court's decision to enshrine corporate power where the Bill of Rights used to be is the notorious Citizens United decision. In Citizens United, the corporate power radicals on the Court, with no necessity to reach the issue, undid nearly a century of work to limit the sale of elections to the highest bidder. And that was just one example of Supreme Court Inc.'s relentless push to endow property with Constitutional rights, even as those rights that are clearly written into the Constitution for protecting people from oppression -- like the 7th Amendment right to civil jury trials -- are turned into dead letters.
Astonishingly, the radical justices most enamored of this ever-expanding, federalism-destroying posture are the ones who like to call themselves "conservative." (They also love to claim to follow the original intent of the Constitution's framers, regardless of their own personal preferences -- apparently the Founders loved corporate power much more than they thought they did!) In the exchange, Prof. Peggy Radin of the University of Michigan Law School concisely summed it all up as follows:
Yes: Arbitration clauses are a threat to federalism because they are ousting state law consumer protection, aggregative remedies, and much else.
Arbitration clauses are also a threat to the common law itself, and therefore to common law adjudication and the power of common law judges. The more the power to decide disputes is transferred to nongovernmental private parties whose decisions are without any public record and without any precedential value, the more the common law system is undermined. There is no opportunity to know whether like cases are treated alike, and no opportunity to rely upon past decisions in planning future actions.
Arbitration clauses are also a threat to the rule of law, because they are destroying the right to redress which must be part of a legal system that honors and enforces the rights that it is set up to establish and protect. They are privatizing what must be public. The opportunity to rely on public decisions that are precedential in order to plan future actions is also a requisite of the rule of law. A regime of ad hoc decision making giving no notice to those who are subject to the law violates the rule of law.
For the same reasons as above, mass market arbitration clauses make a mockery of equality before the law.
(Prof. Radin is the author of "Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law," in which these (and other) issues are discussed.)