[fhayde]

From https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf

> It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935.

Kind of funny they use this as justification considering everything else they've upheld that was adopted decades prior to this without knowledge of modern custom or technology. Convenient argument when it's serving their purpose.

[gowld]

In these cases, the correct SCOTUS answer is "we can't decide". The proper response is some sort of forced decision in Congress -- In a criminal case, a higher court can "remand" -- order a lower court to review and decide. https://en.wikipedia.org/wiki/Remand_(court_procedure)

We need the same for bitrotted legislation.

In effect, we do -- When SCOTUS says "We don't think past Congress made a decision about this, so we'll pick a default ruling", current Congress has every right and opportnity to hold a vote to make a decision. If they don't, that means they agree with the court, and just as well would have repealed the law if SCOTUS ruled the other way.

Now, in practice Congress doesn't do its job (to busy campaigning for reelection), so inertia wields as much power as any considered deliberation....

[mikelinington]

Neither your nor the GP's point seems relevant to the quoted text, which seems pulled specifically to paint the SCOTUS decision in a bad light. I read it as a direct response to the claim of the employees in this case, which is that the NLRA intended to displace parts of the Arbitrage Act. They are just saying that, among other reasons, this was not a common policy and unlikely to have been meant even in spirit.

They further explain their approach to resolving claimed conflict between two pieces of legislation:

> And in approaching a claimed conflict, we come armed with the “stron[g] presum[ption]” that repeals by implication are “disfavored” and that “Congress will specifically address” preexisting law when it wishes to suspend its normal operations in a later statute.

And specifically for the Arbitrage Act, because this is apparently a tactic that people keep trying:

> In many cases over many years, this Court has heard and rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes. In fact, this Court has rejected every such effort to date […] Throughout, we have made clear that even a statute’s express provision for collective legal actions does not necessarily mean that it precludes “‘individual attempts at conciliation’” through arbitration […] And we’ve stressed that the absence of any specific statutory discussion of arbitration or class actions is an important and telling clue that Congress has not displaced the Arbitration Act.

So they're not saying "we can't decide," they're stating (I think): Congress can give employees more protection in this arena, but the laws as written are (1) not unconstitutional and (2) are not being interpreted incorrectly by lower courts.

[gefh]

Yeah, I can't see them overturning the 2nd amendment even though the same logic applies.

[rayiner]

You're mixing up two different things: does the new thing fall within the old language, and would the drafters have used different language had they known about the new thing.

Is a semi-automatic rifle an "arm" as the term was understood in 1789? Yes, almost certainly, in the same way an aircraft carrier is a "ship" as the term was understood in 1789. If semi-automatic rifles had existed in 1789, would the framers still have used "arms" as they did? Maybe, maybe not, but that's irrelevant. We don't care about what they thought, just what they wrote.

Likewise, is a class action "concerted action" as the term was used in 1935? Probably not. Would the drafters of the NLRA have wanted class actions to be protected had those been common in 1935? Probably yes, but that's again irrelevant.

[aaronbrethorst]

We don't care about what they thought, just what they wrote.

Uh, who's "we?" It sounds like you're describing textualism or strict constructionism, which are two of many types of judicial interpretation. https://en.wikipedia.org/wiki/Judicial_interpretation

[true_religion]

The we is the supreme court.

[cookiecaper]

True, but these theories have become popular in the US because within the parameters of the American republic, they're the theories that allow you to step back and say "OK, what did this law mean?". Other theories involve much more individual interpolation and personal judicial bias/opinion/whatever, which is what is usually meant when people say "legislating from the bench".

The people of the Great State of $YOUR_STATE are reading the bills as they're written and electing, instructing, and/or recalling their representatives according to the contemporary mainline meaning of the actual recorded text of the bill. The people of $YOUR_STATE don't know that $YOUR_SENATOR meant X when he said Y. Or even if they do, there's no way to know that the people of $BORDERING_STATE, who also supported the bill, had the same implicit caveat.

Thus, the only way to understand the meaning of laws enacted by "the People" is to interpret the recorded text as an average person contemporary to its passage would have understood it.

[makomk]

It's not that odd. Section 7 is about the right to form unions and carry out collective bargaining: "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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title]."

It would require an awful lot of creative reinterpretation to decide that class action lawsuits are a form of collective bargaining and this section granted some kind of right to them, especially since they didn't exist at the time and wouldn't be invented for several decades.

[s73v3r_]

I think the opposite; I think it would take a lot to decide that class action lawsuits are not a concerted activity for the purpose of mutual aid or protection.