1. you have given no examples of precedent ignored
2. the majority did not "reinterpret" the act, they INterpreted the act, which is their duty. thus you have failed to show any judicial activism.
3. cite the case or part of the law which supports your assertion because not even the dissent mentioned that.
4.
http://www.law.cornell.edu/uscode/9/usc_sup_01_9.html <-- there is the act, cite the language to support your assertion
Precedent Yurt...for 86 years the Federal Arbitration Act of 1925 was never interpreted to circumvent state laws or strip citizens of class action litigation...until now.
Writing about why the Federal Arbitration Act of 1925 pre-empts the California law in question, Justice Scalia demonstrates both his pro-business bias and the selective nature of his brand of originalism.
Contrary to what he suggests, when the law favoring arbitration was enacted, arbitration’s purpose was to resolve disputes between businesses — not businesses and consumers. He doesn’t try to trace his view on class arbitration to the 1925 law because it is mute on the subject. Instead, he provides his own definition of what arbitration should and should not be — with “no meaningful support,” as Justice Breyer writes, in Supreme Court precedent.
ref.
The dissenting view certainly mentions it:
Where does the majority get its contrary idea—that individual, rather than class, arbitration is a “fundamental attribut[e]” of arbitration? Ante, at 9. The majority does not explain. And it is unlikely to be able to trace its present view to the history of the arbitration statute itself.
When Congress enacted the Act, arbitration procedures had not yet been fully developed. Insofar as Congress considered detailed forms of arbitration at all, it may well have thought that arbitration would be used primarily where merchants sought to resolve disputes of fact, not law, under the customs of their industries, where the parties possessed roughly equivalent bargaining power.
ref.
Supreme Court Decision in Concepcion v. AT&T: Another Blow to Consumers
In its 5-4 decision in Concepcion, the Court upheld the enforceability of a clause in a consumer contract which required the respective consumer to arbitrate any claim, regardless of how small the claim, and banned the consumer from joining, being part of or starting a class action. The issue was whether such a clause is enforceable or whether it becomes an unconscionable impediment to consumers realistically being able to pursue legitimate claims. The Court held that such a clause, which bans resort to the class action procedure, was enforceable. This is true, according to the Court, even though the Federal Arbitration Act ("FAA"), by its terms, allows one contesting such a clause to assert all of the standard state law defenses to attack its enforceability, including the defense of unconscionably (e.g., the FAA expressly states that an arbitration clause shall be enforceable "save upon such grounds as exist at law or in equity for the revocation of any contract" 9 U.S.C. Sec. 2). That balancing language (or the "savings clause," as it is known) was previously construed to require that arbitration clauses be fair and not constitute an attempt to prevent a party from being able to realistically avail themselves of the remedy.
Before the Supreme Court's Concepcion decision, most Circuit Court of Appeals speaking on the issue (those are the Federal Appeals Courts just below the Supreme Court), such as the Third Circuit and Ninth Circuit, have applied a sensible balancing test. Under that test, if the consumer contract clause which contains a class action ban is a contract with no ability to negotiate the terms and very little or no bargaining power by the consumer, and involves predictably small dollar amounts (e.g., typically under a few hundred dollars), then an arbitration clause preventing consumers from joining together is considered a "remedy-stripping" device. Those courts held that to prevent a group from aggregating their small value claims in a class action is to essentially prevent them from having any remedy and that result is unconscionable. In addition, the potential for a class claim also serves an important public policy purpose as a countervailing force against the otherwise tantalizing tendency by unscrupulous retailers to seek profits through sharp or unconscionable practices.
Class actions also serve to promote diligence and fairness in the retail marketplace because of the deterrent effect the potential of such a suit would have. That deterrent has now been removed and one has to wonder if the Supreme Court has declared open season on consumers. As in other areas, private class action litigation is often a more effective deterrent than governmental agency oversight, which tends to be underfunded, under-staffed, moved to enforcement or non-enforcement based on political whims, or spread too thin to be effective (e.g., witness the SEC's oversight of the financial industry as it expanded into securitization and sale of subprime or junk mortgages).
So What Might the Legacy of This Court Be Concerning Individual Protections?
So here we are, with a Court that seems to find its purpose in removing important protections for the individual or underdog. The decisions of the current Court appear to be forming a pattern that advances corporate America's agenda in dominating the American landscape over individual rights in the employment arena (e.g., the Lilly Ledbetter v. Goodyear Tire & Rubber Co. case); campaign and election influence (the Citizens United v. Federal Elections Commission case); and now, with Concepcion, in the consumer marketplace.
In speaking with a number of middle-class people who work in various professions (lawyers, doctors, teachers, accountants) about their perceptions on this subject, and in conducting an informal survey, I have found that the majority seem to agree with the prediction that this country, within the next 20 years, will be controlled to a large degree by corporations. Individuals will have fewer and fewer rights that are not reliant on the benefits that corporations may deign to provide. This is consistent with studies that confirm the middle class is shrinking and the divide between rich and poor in this country is growing.
One can't help but be reminded of President Eisenhower's farewell speech warning Americans of the dangers of allowing the "military-industrial complex" (his own term) to become too influential. President Eisenhower was hardly a liberal by any stretch of the imagination. Perhaps the Justices in the majority here missed that speech.
ref.
