Over the past few weeks, the close of the 2009 Supreme Court term and the confirmation hearings for nominee Elena Kagan have together prompted much analysis of the ideology and direction of the Roberts court, particularly with respect to the impact of its decisions on “ordinary Americans.” While the role of the Court in interpreting and validating the nation’s laws has always affected the individuals bound by them, a recent body of decisions has highlighted with unusual clarity the competing interests of the mighty and the powerless where such determinations are concerned.

The Kagan hearings furnished legislators with an occasion not only to review the Court’s jurisprudence from the past few terms but also to discern common themes and priorities likely to reemerge in the years to come.  One such leitmotif has been power dynamics in the workplace and other institutional settings.  To underscore the Court’s anti-worker orientation, policymakers have pointed to such rulings as Rent-A-Center v. Jackson, which recently upheld the power of arbitration agreements to preclude judicial review of their validity, effectively obligating employees to waive their right to a trial in the event of future disputes. (more…)