Kagan, J., dissenting
that reason, it would never have graced the pages of the U. S. Reports save that this case involves… class proceedings.
The heart of the majority’s opinion lies in its cataloging of class arbitration’s many sins. See ante, at 7–8. In that respect, the opinion comes from the same place as (though goes a step beyond) this Court’s prior arbitration decisions. See, e. g., Concepcion, 563 U. S., at 350 (lamenting that class arbitration “greatly increases risks to defendants” by “aggregat[ing] and decid[ing] at once” the “damages allegedly owed to tens of thousands of potential claimants”); Epic Systems, 584 U. S., at ___ (slip op., at 8) (similarly bemoaning the greater costs and complexity of class proceedings). The opinion likewise has more than a little in common with this Court’s efforts to pare back class litigation. See, e. g., Comcast Corp. v. Behrend, 569 U. S. 27 (2013); Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 348–360 (2011). In this case, the result is to disregard the actual contract the parties signed. And to dismiss the neutral and commonplace default rule that would construe that contract against the drafting party. No matter what either requires, the majority will prohibit class arbitration. Does that approach remind you of anything? It should. Here (again) is Stolt-Nielsen as Concepcion described it: The panel exceeded its authority by
to not understanding Justice Thomas’s full concurrence in today’s opinion. See ante, at 2 (expressing “skeptic[ism]” about the majority’s reasoning but joining its opinion out of a (misplaced) respect for precedent). I would think the opinion a hard pill to swallow for someone who believes that any implied preemption “leads to the illegitimate—and thus, unconstitutional—invalidation of state laws.” Wyeth v. Levine, 555 U. S. 555, 604 (2009) (Thomas, J., concurring in judgment); see, e. g., Bates v. Dow Agrosciences LLC, 544 U. S. 431, 459 (2005) (Thomas, J., concurring in judgment in part) (“[P]re-emption analysis is not a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives” (internal quotation marks and alteration omitted)).
