Earlier this week the Supreme Court issued its decision in a trio of cases with awful implications for worker rights. Modern employers have increasingly required employees to enter into contracts whereby they agree to resolve disputes before an arbitrator rather than a court. Many employers, not content to merely push workplace disputes into arbitration, have also begun to impose contractual provisions requiring employees to agree to air legal grievances individually rather than joining together with other workers who have suffered the same wrongs. The question facing the Court was whether this latter type of provision in arbitration agreements should be enforceable. In a closely divided decision in  Epic Systems Corp. v. Lewis, the Court said yes. Going forward, many workers who seek to arbitrate workplace disputes will have to go it alone.

The cases have attracted a flood of commentary, and I will no doubt end up duplicating some of it, including my colleague Bill Gould’s excellent analysis in these same pages. Still, here are a pair of thoughts that may help to size up the decision and its consequences.

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Stanford Law Professor David Freeman Engstrom

The first concerns the cases’ real-world stakes. Legal readers will quickly grasp the implications of class-action waivers in arbitration agreements. Many workplace disputes—especially those involving low-wage workers—aren’t worth enough money to permit a single wronged worker to pay a lawyer or foot other litigation costs. It’s only when workplace disputes are aggregated that they become economically viable. If workers can’t join together, they likely can’t seek vindication at all. The alternative to collective arbitration is no arbitration.

If workers had other viable ways to vindicate their rights, then we could rest easy. But, as I warned in an op-ed in the New York Times on oral argument day back in October, the consequences of blessing class-action waivers may be worse than you think. In addition to bringing lawsuits themselves to assert their legal rights under workplace laws, workers have historically had two other ways to shape the terms and conditions of their employment. One is to band together and engage in collective bargaining with an employer specifying in detail the rules that will govern the workplace. The other is to alert a government agency with jurisdiction over a legal violation (e.g., the Department of Labor) and ask it to initiate an enforcement action. The problem is that both of these ways of shaping workplace rules and seeking redress have largely fallen by the wayside in recent years. Union membership and power are at an all-time low. The overwhelming majority of private sector workers no longer belong to one. Moreover, powerful deregulatory forces—including in the current Administration, but stretching back decades now—have gutted the federal administrative state, depriving it of the resources and talent necessary to perform its regulatory tasks effectively. This week’s decisions have thus taken away the last remaining means that millions of workers, including many of the most vulnerable ones, have to make their workplaces fair and safe.

And, if that weren’t bad enough, some fascinating new scholarship gives us even more reason to worry. In the past few years, economists and legal scholars have begun to assemble compelling evidence that labor markets have grown systematically less competitive in recent decades, allowing employers to exercise something akin to monopsony power. Indeed, this monopsony power may help to explain the puzzling fact that, even as unemployment rates have plunged, many workers’ wages have stagnated. Think here of the retail worker who can’t look elsewhere now that Wal-Mart has displaced mom-and-pop shops in her town. Or, think of the nurse, who watches as hospital mergers and consolidations reduce the number of employers vying for his services to a few or even one. If we zoom out far enough, we can see class-action waivers as a battle in a wider war over the relative leverage enjoyed by employers and employees within the employment relationship. The Court’s decision blessing class-action waivers is just another loss of leverage for employees. Without legal process or realistic exit rights, employees face a playing field that is skewed by almost any definition. Employers now hold virtually all the cards.

My second thought arises out of the legal analytics on display in the dueling opinions of Justice Gorsuch, writing for the conservative majority, and Justice Ginsburg, writing for the liberal minority. At the heart of the cases was a basic statutory collision. The Federal Arbitration Act says courts should rigorously enforce arbitration agreements. And in a long line of cases involving consumers, the Supreme Court has interpreted the FAA to mean that parties are bound by such agreements, no matter what and notwithstanding other interests. This, by the way, is why you likely can’t sue your cellphone provider or credit card issuer in court and, once pushed into arbitration, you can’t join up with fellow customers.

But there was good reason to think the employment context would be different. The National Labor Relations Act, which established the current system of collective bargaining, came after the FAA. And it provides the protections you would expect for various types of worker organization—forming unions, engaging in collective bargaining with employers, and the like. But the statute also protects, at the end of a list of more specific items, workers’ ability to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Did Congress, when it included this language, mean to supersede the Federal Arbitration Act’s command that arbitration agreements be enforced in full? More concretely, should arbitrations brought as class actions count as “other concerted activities” and enjoy protection?

Without little to no actual legislative history to work with, Justice Gorsuch and Justice Ginsburg were each, as in so many of the marquee cases that reach the Court, working on a blank canvas. What is most striking about the case is the very different ways they went about filling it.

There is a surprising banality to Justice Gorsuch’s majority opinion. He invokes the canon requiring courts to reconcile conflicting statutes, then does surprisingly little to do so. On the question of whether “other concerted activities” might include collective legal action, he blithely floats two arguments. One is that class actions in their modern form didn’t exist yet when Congress enacted the NLRA—a position that is at best question-begging given the actual history of civil procedure at the time and at worst dangerously close to saying that e-mail isn’t covered under the First Amendment because Madison and Hamilton and the other Founders didn’t specifically mention it. His other argument is a brief and dubious application of the ejusdem generis canon. Catch-all terms should be read to round out only items that appear in the preceding list, Justice Gorsuch tells us, apparently even where Congress specifically notes the more specific category and thus draws it into relief with the catch-all that follows.

Justice Ginsburg, the former law professor, goes in a very different direction and offers an extended history lesson, though the overall effect is not entirely persuasive, either. Much of her opinion is built around a lengthy historical disquisition detailing how the New Dealers sought to give countervailing power to workers through an array of statutes and executive actions. At the heart of her analysis is a loose analogy to the “yellow dog” contract, outlawed by the Norris-LaGuardia Act, in which employers imposed contracts on workers conditioning employment on their not joining a union. These unbargained-for contracts, Justice Ginsburg notes, are no different from modern-day class-action waivers, and, given Norris-LaGuardia, we should read congressional intent accordingly. Justice Ginsburg also takes issue with Justice Gorsuch’s claim that class actions didn’t exist yet when Congress enacted the NLRA, noting the struggles by equity courts throughout the 19th century to craft rules for aggregated actions of various sorts. There is also the fact that Congress would, within three years of the NLRA, specifically create a collective action for enforcement of the Fair Labor Standards Act—suggesting that worker class actions were hardly an acrobatic leap of legal imagination at the time.

To be sure, it’s not so much that Justice Ginsburg’s history lesson is the obviously winning argument here. Using proximate statutes to infer legislative intent raises all of the usual concerns about the uses and abuses of legislative history and then some. What jars for me is the casualness of Justice Gorsuch’s rejection of the rich historical materials at his disposal in favor of cool, acontextual canons. Some judicial revolutions come with rhetorical pyrotechnics. Justice Kennedy’s recent gay marriage opinions, with prose that is soaring and even purple, offer an example. But many others are banal affairs, and Justice Gorsuch’s opinion here offers a paradigm case. There are no Scalia-like flourishes calling into question the social utility of litigation or skewering workers for bringing frivolous lawsuits. The analysis is relentlessly bland, even boring. The nitty gritty of revolutions is not always a dramatic execution in a public square. It can also be a seedy, behind-the-scenes assassination—or even a quiet purge of the history professors.

David Freeman Engstrom is a Professor of Law and the Bernard D. Bergreen Faculty Scholar at Stanford Law School.