The Supreme Court opens its next round of hearings tomorrow by examining anew two basic legal questions: how does a court decide if a legal right has been forfeited, and who speaks for a state government when its laws are challenged in federal courts?  The first grows out of workers’ claim that they were cheated out of part of their wages; the second arises from a dispute over state voter ID laws.  Depending upon how widely the Court views that second case, the outcome could have a wide impact on the current nationwide controversy over elections and voting rights.

The ”live” audio (no video) of the hearings is available at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.

First case:  Morgan v. Sundance.  Scheduled for one hour, the hearing begins at 10 a.m.

Background:  One of the oldest and most enduring features of civil society is that disputes should be settled by peaceful means, rather than by force or violence.  The idea originated in a formal way in the 6th Century legal codes of the Byzantine emperor, Justinian, but developed more fully in English common law beginning in the early 16^th Century.  Today, it is well known in America, especially in the law of contracts.

Contract law is usually taught in the first year of law school, probably because it involves the stuff of daily life, helping legal beginners to start thinking in terms of rights and duties.

A contract, in its simplest form, is an agreement – preferably written – in which two private individuals or entities make a promise to each other to do (or not to do) something.  Their promise is binding and thus can be enforced if violated.  Given human nature, the agreement sometimes will break down, and the courts will be drawn in to enforce its terms.

It is now quite common, however, for the two sides in a contract to commit to settling disputes without going to court, at least initially.  That involves a promise to arbitrate the disagreement.  The process involves a private arrangement in which the two sides hand over the dispute for a decision by a neutral figure – a lawyer or judge – and are bound by the outcome.

For many decades, courts in the U.S. tended to be somewhat hostile toward arbitration, because it existed largely outside the jurisdiction of the courts, and was governed by state law, varying from state to state.  Federal courts had, at most, only a secondary role in developing its scope.  Congress stepped in, enacting the Federal Arbitration Act in 1925 to standardize the procedures.  The Act’s legality has been upheld under Congress’s power over commerce.

Although participation in arbitration is supposed to be fair to both sides, a common complaint in modern times – especially in employment disputes – is that management simply has more power than workers, giving it an advantage in the process.  Management usually prefers to arbitrate with individuals, rather than groups who combine to enhance their strength and perhaps to multiply the results.

The Supreme Court is often drawn into disputes over how to interpret and apply the 1925 Act.  It has stressed that arbitration clauses should operate by the same principles as all contracts.

The first case before the Court on Monday involves a basic dispute over arbitration.  It arises from a wages complaint by workers employed on an hourly basis in Taco Bell fast-food restaurants, operated by Sundance, Inc., through 180 franchise outlets.

Robyn Morgan, who worked at a Taco Bell in Osceola, Iowa, and co-workers there went to federal court in Iowa to enforce a workplace right given them by federal law – a right to overtime pay if they were on the job more than 40 hours in a week.  They argued in court that Sundance had a policy throughout its chain of shifting hours week to week, so that no one was recorded as working more than 40 hours.  The result, they said, was that they were denied overtime pay and did not get paid for all of the hours they actually did work.

Sundance ultimately sought to have the case dismissed, contending that Morgan, under the terms of her job, was required to go to arbitration over any workplace dispute, and do so alone.

Morgan countered that Sundance waited too long to make that claim and otherwise had shown no interest in arbitration, so she said it had been forfeited (“waived”).  It is generally understood that a right that exists under a contract can be surrendered only in one of two ways: explicitly giving up the right or acting in a way that amounts to giving it up.

The workers lost when a federal appeals court ruled that, although Sundance knew it had a right to compel arbitration but acted in a way that would suggest it waived that right, the dispute should go to arbitration anyway because Morgan and her co-workers had not proved something else: that they would be harmed (legally, “prejudiced”) in having to defend their claims.

There is a dispute among federal appeals courts on the “prejudice” issue and the Supreme Court agreed to decide it.

The question before the Court:  Do federal courts have authority to add new requirements to show that a party that had a right to arbitrate a contract dispute has given up the right?

Significance:  No principle of the law governing the resolution of commercial contract disputes is more fundamental than that they be handled in equal fashion, whether or not arbitration is the agreed way to enforce the contract.

With that guiding principle in the background, it would seem to be difficult for a federal court to justify adding a new layer of proof of surrender of a legal right, and do so only for the right to arbitrate.  That is particularly so, because the added burden of proof is imposed on only one side: the party claiming that the right has been surrendered by the other party.  Given that the balance of power in arbitration already appears uneven, especially in management-worker and vendor-customer disputes, there is a risk that the comparative imbalance will be aggravated.

That approach might well reward the party that has deeper pockets, able to go through a court fight but then claim a right to arbitrate only after that fight begins to go badly.

The dispute over the point among the lower courts now means that this issue is resolved differently in different parts of the country, balkanizing the law.

Second case:  Berger v. North Carolina NAACP.  This hearing, set for one hour, will begin at about 11:30 after the workers’ arbitration case has finished.

Background:  One of the consequences of the deep partisan division in modern America is that the federal courts – including the Supreme Court – are getting pulled increasingly into resolving conflicts between political adversaries within state governments or between states and the federal government over the constitutionality of controversial new laws or policies.

The defense in court of such new initiatives must be undertaken by someone, but by whom?  Customarily, when a state law is under constitutional challenge, the state’s attorney general has the duty to rise to its defense.  Sometimes, it is another state agency.  If a federal law or policy is being challenged, the defense usually is done by the U.S. Justice Department.

Suppose, however, that the defender gives up or makes only a half-hearted defense; can another defender step in?  That seems to be happening more often these days, when a state legislature is led by one political party and the state executive by the other party.  Lately, the party division is often between a Republican legislature and Democratic executive officials.

Legally speaking, if someone else is to move into the role of defending a challenged law, that becomes the issue of “intervention.”  An intervenor becomes a full party in the case.

In the current term of the Supreme Court, the Justices have taken on three separate cases on intervention rights.  In the first, it has already allowed a state attorney general to enter a Kentucky abortion law case late in the process, after another state agency backed out.  The Court is still pondering a second case, in which the Biden Administration dropped an anti-immigrant policy and conservative state governments want to defend the policy.

The third case is the one being heard on Monday involving a deep partisan feud over voting rights in North Carolina.  The GOP-controlled legislature passed a new photo ID law for voters in 2018 (over the Democratic governor’s veto) after a similar 2013 law had been struck down in 2016 by a federal appeals court and a new Democratic state attorney general refused to continue a Supreme Court appeal filed by his Republican predecessor.

When civil rights groups went to federal court to challenge the new 2018 law, the two top Republican leaders of the state legislature sought to intervene to defend the law. (In the meantime, the legislature had passed over the governor’s veto a law providing that the leaders of each of its houses would be “necessary parties” in any court case testing any state law.)

The law was being defended by the State Board of Elections, which has not shared the governor’s view that the law discriminates against the poor, racial minorities and the elderly.

The legislature’s two leaders then moved to intervene in the case to make a full defense of the new law.  A federal trial judge ruled that they could do so only if the state executive declined to do so.  The judge said that there was a “presumption” that if the law already had a state defender, that was adequate to represent the state’s interests.

After the judge turned down a second request by the legislative leaders to intervene and barred enforcement of the voter ID requirement, the case was appealed to a federal appeals court.  It upheld the trial judge’s decision against letting the legislative leaders take part, but voted to uphold the constitutionality of the voter ID law.

The two legislative leaders then appealed to the Supreme Court.  Their appeal does not involve the voter ID law’s validity, since that has been upheld by the appeals court.  Only their right to intervene is at stake.

The questions before the Court:  Do state legislative leaders, on their own, have a legal right to join in any federal court case testing the constitutionality of a state law?  What legal standard is to be used to decide the scope of that right?

Significance:  The outcome of the case is important at a basic level because it tests the meaning of state sovereignty, and the power of the state to decide for itself how to defend the validity of its own laws in federal court.  The federal courts’ long-standing view that the state’s highest legal officer can adequately defend state laws seems at risk in this case.

Far more significant is that the Court has been asked by two conservative advocacy groups to use the case to declare that the U.S. Constitution gives state legislatures full, unchallengeable power to decide how to run federal as well as state elections, including the scope of voters’ rights.  That is a part of a political movement advocating the “independent state legislature” theory of election regulation.  The theory means that state courts could not overturn any laws on voting passed by the legislatures, and federal courts must defer to state legislatures’ acts.

The theory came to national prominence in the controversy stirred up by former President Donald Trump and his supporters about whether the 2020 election was stolen from him.

There are at least three Justices on the Supreme Court now who seem sympathetic to that theory.  They might find support in the fact that, when the appeals court ruled against the state legislators’ bid to intervene, a highly respected judge on that court endorsed the theory in his dissenting opinion.

On Tuesday, the Court will hear a single case, seeking new clarity on an international treaty governing the return of abducted children to their home countries.