Last month, in Rent-A-Center, West Inc. v. Jackson (No. 09-497), the Supreme Court, in a 5-4 decision written by Justice Antonin Scalia, ruled against an employee who sought to have an arbitrability issue in his case decided by a court, and not by an arbitrator. The obstacle facing the employee, Antonio Jackson, was a clearly drafted “delegation clause” — a clause directing that any challenges to the enforceability of the arbitration agreement must be decided by an arbitrator, not a court. Jackson’s case had this unusual weakness: he had no challenge whatsoever to the validity or enforceability of the delegation clause itself. For this reason, in briefs and oral argument to the Supreme Court, he urged the Court to rule that one can escape an otherwise enforceable delegation clause of an arbitration agreement based solely on objections (in his case unconscionability objections) directed to parts of the agreement other than the delegation clause itself.
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