By admin 
This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court. Keep up with all of our Supreme Court coverage and analysis by signing up for weekly email roundups. The best way to support our work—and unlock exclusive legal analysis—is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
Read more Sonia Sotomayor Bluntly Exposed the Supreme Court’s Latest Voting Rights Lie
Last week, the Supreme Court delivered a resounding victory for workers in Flowers Foods Inc. v. Brock, ruling that local delivery drivers cannot be forced into private arbitration for employment disputes. The Federal Arbitration Act requires federal courts to enforce arbitration agreements—even those that employees are essentially forced to sign when accepting a job. Often, this means that workers must resolve employment disputes through individual arbitration processes, where the deck is stacked against workers, instead of going to court. These arbitration agreements also often prohibit workers from banding together in class-action lawsuits. But the FAA expressly excludes from arbitration “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The Flowers Foods decision was the latest in a series of cases in which the justices interpreted that exemption to broaden access to federal courts.
This opinion, like the one in a prior case called New Prime v. Oliveira, was authored by Justice Neil Gorsuch. The opinions in both cases rely heavily on textual and historical analysis. And both arguably demonstrate the fruits of a litigation tool that Mark Joseph Stern years ago dubbed the “Gorsuch brief”—a brief making “a highly technical argument designed to nab the justice’s vote by fixating on the text of a statute and its meaning at the time of passage.”
Gorsuch is an avowed textualist. He has constantly maintained that when jurists interpret statutes, words are to be given the meaning that an ordinary English speaker would have understood them to possess when Congress enacted the statute. So if the justice says he will follow the text wherever it leads, the progressive wager is that it sometimes leads to places that help workers. And that’s the goal of a Gorsuch brief: hand him the raw materials of a textual and historical inquiry—from dictionaries published around the year the statute was passed to court decisions of the same era and other documented history of how a phrase was actually used—showing that the words of a statute favor a particular outcome.
That strategy paid off in 2019, in New Prime v. Oliveira. There, the court held that the FAA’s exemption from arbitration for “contracts of employment” covered not only employees but also independent contractors. In his opinion for the court, Gorsuch relied heavily on historical materials. He cited six dictionaries from 1925, the year the FAA was enacted, as well as contemporaneous statutes and rulings, to reason that the phrase “contract of employment” was understood at the time to encompass “work agreements involving independent contractors.” Because of New Prime, contractors can now litigate their claims in federal court instead of being forced into private arbitration.
Flowers Foods is the latest case demonstrating the Gorsuch brief’s potential for success. The case involved a “last-mile delivery” driver, Angelo Brock, who transported baked goods along the final leg of their journey from their origin in one state to their destination in another. Brock himself never crossed state borders. Nor did he drive or interact with a vehicle that had done so. He simply picked up goods from a warehouse in Colorado and delivered them to destinations within the state. When he sued Flowers Foods, alleging that the company had underpaid him in violation of various federal and state laws, Flowers seized upon those facts to argue that Brock was not “engaged in … interstate commerce” and could be forced into arbitration under the FAA. The case thus turned on the meaning of that phrase. Must a transportation worker like Brock himself cross state borders or directly interact with a vehicle that crosses state lines to be “engaged in interstate commerce” and thus exempt from arbitration?
Read more The Supreme Court Just Transformed Its Horrible Voting Rights Ruling Into Something More Calamitous
A unanimous court held that the text included no such requirement. In his opinion for the court, Gorsuch relied heavily on dictionaries and cases published around the time the FAA was enacted. Quoting the definitions of engaged and interstate commerce from Black’s Law Dictionary and Webster’s Dictionary, he explained that “nothing in those terms requires an individual to cross state lines or interact with a vehicle that does.” Referencing the Cyclopedic Law Dictionary, he asserted that an interstate journey involves not just crossing state lines. Though “a continuous carriage” may begin in one state and end in another, he noted, “much of the journey” can take place “within the limits of a single state,” like Brock’s last-mile deliveries here.
Gorsuch next turned to Supreme Court cases from that era. In an 1871 decision called The Daniel Ball, the court had held that a steamboat was “engaged in commerce between the States” even though it never left Michigan, because it carried goods bound to or arriving from other states. That case, Gorsuch reasoned, was on point here: It foreclosed Flowers’ rule that workers needed to cross state lines or interact with vehicles traveling across borders to engage in interstate commerce. And Gorsuch relied on several other cases too, including one in which a Pennsylvania salesman who picked up groceries shipped from out of state at a railroad depot and delivered them to their final destination was “engaged in interstate commerce,” even though there was no indication that he ever left Pennsylvania or interacted with vehicles that had.
These contemporaneous dictionaries and historical cases did not materialize for the first time in the court’s opinion. They were core to the argument that , and were set out in detail in amicus briefs, including one that the Constitutional Accountability Center of Brock. The briefs walked through the same FAA-era dictionaries the court ultimately relied on. They also traced how courts in the early 20th century read the identical phrase engaged in interstate commerce, when used in other statutes, to hold that workers handling the local leg of a longer interstate shipment were engaged in that commerce. That same understanding, the brief argued, was captured in the FAA in 1925. The court thought so too.
To be sure, Flowers Foods leaves open other issues about the scope of the FAA’s exemption that may reach the court one day. And it does not mean that the Gorsuch brief will always lead to progressive victories, either in arbitration or on other issues. But the repeated success of the Gorsuch brief does lay out a real, repeatable path for progressive advocates to win conservative votes at this Supreme Court—one that traces the justice’s own stated methodological commitments. When the original meaning of a statute favors progressive outcomes, the Gorsuch brief invites the justices to take to the ground they say they stand on.
Read more Spencer Pratt Built a Movement. Democrats Helped Him Do It.