Over on the Concurring Opinions blog Lawrence Cunningham from GW has been following the Supreme Court’s arbitration jurisprudence for some time. You can find his thorough analysis on the issues and arguments in AT&T v. Concepcion here. An excerpt is below.
The principal theme of questioning probed how the Justices could tell if a state’s judges comply with the FAA’s mandate to treat arbitration clauses like other contracts. The company’s lawyer (Andrew Pincus) said it was simple: look at the general unconscionability doctrine applied to all contracts and compare it to the unconscionability doctrine applied to arbitration clauses. . . . . All six who questioned him—Scalia, Sotomayor, Kagan, Ginsburg, Kennedy, and Breyer—pressed on versions of what test to apply. Pincus kept repeating variations of: compare the three prongs of California’s general doctrine to the three prongs as applied to arbitration clauses. But many problems appear and went unanswered.
Though hard to predict, the edge in yesterday’s oral argument went to Gupta [Concepcion’s lawyer]. Based on what was said during the argument, I predict a 8-1 or 7-2 vote for the consumers and California, with Alito dissenting and Roberts a toss up. Thomas, who never speaks at oral argument, will vote for the consumers and state on federalism grounds, as he always does in FAA cases.