The question required the court to interpret two federal statutes—the Federal Arbitration Act (1925) and the National Labor Relations Act (1935). The FAA says that “a written provision in … a contract evidencing a transaction involving commerce” requiring the parties to arbitrate instead of litigate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The NLRA provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Thus, the issue is whether the no-group-arbitration clause, by violating that provision of the NLRA, provides “grounds as exist at law” to bar the employer-imposed requirement of individual arbitration.

Gorsuch accused Ginsburg, author of the dissent, and the other three moderate liberals—Breyer, Sotomayor, and Kagan—of improperly consulting their own policy preferences, refusing to harmonize two easily reconcilable federal statutes, and illicitly smuggling extra-legal commentary—legislative history—into judicial decisions. But this was purest rhetorical Pecksniffery. Gorsuch himself quite cheerfully invoked a pro-arbitration policy preference; did no more to harmonize the two statutes than did the dissents; and ignored actual history, and the text of the NLRA, in favor of a spurious extra-legal non-textual narrative of the FAA.

Begin with text: the NLRA states that it is designed to counter “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association.” There is no language like this in the FAA. The best histories of the FAA’s adoption suggest that it was designed to efficiently settle disputes among merchants—business interests with comparable bargaining power. The Act itself says it should not be read to affect “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The sponsors stated during deliberations that it was not designed to cover labor agreements

Over the past 35 years, however, the Court’s conservatives have reinterpreted the Act to include what they call a “liberal federal policy favoring arbitration agreements.” This is a judge-made policy invention, reflecting conservative justices’s empathy for corporations and large employers facing lawsuits by consumers and employees. Interpreting the FAA and the NLRA in favor of the employer does harmonize the two statutes—that is, reads them not to conflict with each other. But the alternate reading does that at least as well. That is, a judge could read the NLRA to bar employer-imposed contracts requiring individual arbitration. How? Under the NLRA, these clauses could be considered as unfairly restricting “other concerted activities for the purpose of ... mutual aid or protection.” That doesn’t do violence to the FAA; its text explicitly allows an exception when contracts violate “grounds as exist in law.”