That was the question Justice Antonin Scalia posed during oral arguments today in AT&T Mobility LLC v. Concepcion. In one of the most closely watched cases of the new session, which some half-jokingly refer to as Arbitrations v. Class Actions, the Supreme Court will decide whether California law governing unconscionable contracts is preempted by the Federal Arbitration Act when a consumer contract specifies that the parties must arbitrate any disputes, and that the arbitration cannot include any claims on behalf of a class. All indications were that a majority of the justices were not interested in telling states that unconscionable agreements had to be enforced even if they fell under the scope of the FAA.
Andrew Pincus of Mayer Brown, who represents AT&T, argued that the California standard for determining unconscionability discriminated against arbitration and therefore ran afoul of the FAA. He called the lower court ruling "[making] up a special rule for arbitration." Justice Ruth Bader Ginsburg didn't buy it. "The rule is the same whether it's litigation or arbitration," she said.
If Justice Antonin Scalia and Justice Ruth Bader Ginsburg are suggesting that they hold the same position on the issue, it's a good bet that theirs is the majority position. If you want to read the transcript and draw your own inferences, click this link.
It looks like class actions are going to be with us a while longer.