Legal Update – New Supreme Court Justice New Efforts to Unionize Amazon and New Rule Concerning Enforcement of Arbitration Awards

by David Warner, Partner


It’s (almost) official! Judge Ketanji Brown Jackson has been confirmed to the United States Supreme Court. On April 7, 2022, a Senate Majority voted to confirm Judge Jackson’s nomination to the Supreme Court in a 53-47 vote. She is expected to be sworn in before the start of the 2022-2023 Supreme Court term.

Judge Jackson will be filling the vacancy left by Justice Stephen Breyer, who will retire at the end of the Court’s current term. In addition to becoming the first Black woman to serve on the Supreme Court, Judge Jackson is also the first public defender to ever reach this station.

While it is anticipated Judge Jackson will being a new perspective to the bench, she is unlikely to affect the current composition of the Court. Prior decisions suggest a pragmatic approach to the law, akin to the departing Judge Breyer’s jurisprudence.

In perhaps equally earth-shaking news, the Amazon Labor Union (ALU) won a historic union victory successfully organizing an 8,000 worker Amazon warehouse facility on Staten Island, New York. It is the first Amazon facility to be successfully organized. In may not be the last as, purportedly, more than 100 other US-based Amazon facilities have contacted ALU President Chris Smalls about unionizing their own workplaces.

Of course, there’s winning an election, and then there’s holding on to that win, and then negotiating a collective bargaining agreement. And the legal wrangling is just beginning. Amazon has already filed objections to the election asserting that the ALU and NLRB interfered with the vote, compromising employees’ rights to a free and fair election. Allegations include that the ALU threatened and coerced workers into casting a “yes” vote and interfered with workers during the voting process. Among the more colorful objections is the assertion that the ALU supplied workers with marijuana to incentivize pro-union sentiment. “Only in America!!”

Finally, in more “technical” news, last month the Supreme Court issued a decision in Badgerow v. Walters, No. 20-1143, ending a split among the Circuit Courts over when federal courts have subject matter jurisdiction to review arbitration awards under the Federal Arbitration Act. In an 8-1 decision, the Court held that federal courts cannot “look through” to the underlying controversy to establish subject matter jurisdiction. As a practical matter, this will reduce federal review to matters with diversity of citizenship between the parties, and greatly expand the role of state courts in reviewing and enforcing arbitration demands.