The Supreme Court granted cert in Jackson v. Rent-a-Center West, 09-0947, http://www.scotusblog.com/todays-orders-52/ Karl Bayer posted the question presented on his blog and I repeat it here:
The question presented in the case is: Is the district court required in all cases to
determine claims that an arbitration agreement
subject to the Federal Arbitration Act (“FAA”)
is unconscionable, even when the parties to the
contract have clearly and unmistakably assigned this
“gateway” issue to the arbitrator for decision?
As I commented earlier (when the Ninth Circuit decided this case), I believe that if the parties clearly and unmistakably delegate the power to decide unconscionability to the arbitrator, the arbitrator should be able to resolve the delegated question, even if it is a question about the unconscionability of a contract term.