throbber

`(Slip Opinion)
`
`
`
` OCTOBER TERM, 2017
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`EPIC SYSTEMS CORP. v. LEWIS
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE SEVENTH CIRCUIT
`No. 16–285. Argued October 2, 2017—Decided May 21, 2018*
`In each of these cases, an employer and employee entered into a con-
`tract providing for individualized arbitration proceedings to resolve
`
`employment disputes between the parties. Each employee nonethe-
`less sought to litigate Fair Labor Standards Act and related state law
`
`claims through class or collective actions in federal court. Although
`
`
`the Federal Arbitration Act generally requires courts to enforce arbi-
`
`tration agreements as written, the employees argued that its “saving
`
`clause” removes this obligation if an arbitration agreement violates
`
`some other federal law and that, by requiring individualized proceed-
`ings, the agreements here violated the National Labor Relations Act.
`
`The employers countered that the Arbitration Act protects agree-
`ments requiring arbitration from judicial interference and that nei-
`
`ther the saving clause nor the NLRA demands a different conclusion.
`
`Until recently, courts as well as the National Labor Relations Board’s
`
`general counsel agreed that such arbitration agreements are enforce-
`able. In 2012, however, the Board ruled that the NLRA effectively
`nullifies the Arbitration Act in cases like these, and since then other
`
`
`courts have either agreed with or deferred to the Board’s position.
`
`Held: Congress has instructed in the Arbitration Act that arbitration
`
`agreements providing for individualized proceedings must be en-
`forced, and neither the Arbitration Act’s saving clause nor the NLRA
`
`suggests otherwise. Pp. 5–25.
`——————
`
`*Together with No. 16–300, Ernst & Young LLP et al. v. Morris et al.,
`on certiorari to the United States Court of Appeals for the Ninth Cir-
`cuit, and No. 16–307, National Labor Relations Board v. Murphy Oil
`
`USA, Inc., et al., on certiorari to the United States Court of Appeals for
`
`the Fifth Circuit.
`
`
`
`
`
`
`
`
`
`

`

`2
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`
`EPIC SYSTEMS CORP. v. LEWIS
`
`
`Syllabus
`
`(a) The Arbitration Act requires courts to enforce agreements to
`
`arbitrate, including the terms of arbitration the parties select. See 9
`U. S. C. §§2, 3, 4. These emphatic directions would seem to resolve
`any argument here. The Act’s saving clause—which allows courts to
`
`refuse to enforce arbitration agreements “upon such grounds as exist
`at law or in equity for the revocation of any contract,” §2—recognizes
`
`only “ ‘generally applicable contract defenses, such as fraud, duress,
`
`
`or unconscionability,’ ” AT&T Mobility LLC v. Concepcion, 563 U. S.
`
`
`333, 339, not defenses targeting arbitration either by name or by
`
`more subtle methods, such as by “interfer[ing] with fundamental at-
`
`tributes of arbitration,” id., at 344. By challenging the agreements
`
`precisely because they require individualized arbitration instead of
`class or collective proceedings, the employees seek to interfere with
`
`one of these fundamental attributes. Pp. 5–9.
`
`(b) The employees also mistakenly claim that, even if the Arbitra-
`
`tion Act normally requires enforcement of arbitration agreements
`
`like theirs, the NLRA overrides that guidance and renders their
`
`
`agreements unlawful yet. When confronted with two Acts allegedly
`
`
`touching on the same topic, this Court must strive “to give effect to
`
`both.” Morton v. Mancari, 417 U. S. 535, 551. To prevail, the em-
`
`
`ployees must show a “ ‘clear and manifest’ ” congressional intention
`to displace one Act with another. Ibid. There is a “stron[g] pre-
`
`sum[ption]” that disfavors repeals by implication and that “Congress
`
`will specifically address” preexisting law before suspending the law’s
`
`normal operations in a later statute. United States v. Fausto, 484
`U. S. 439, 452, 453.
`
`The employees ask the Court to infer that class and collective ac-
`tions are “concerted activities” protected by §7 of the NLRA, which
`guarantees employees “the right to self-organization, to form, join, or
`
`assist labor organizations, to bargain collectively . . . , and to engage
`in other concerted activities for the purpose of collective bargaining
`
`
`
`
`
`or other mutual aid or protection,” 29 U. S. C. §157. But §7 focuses
`
`
`on the right to organize unions and bargain collectively. It does not
`
`mention class or collective action procedures or even hint at a clear
`
`
`and manifest wish to displace the Arbitration Act. It is unlikely that
`
`
`
`Congress wished to confer a right to class or collective actions in §7,
`since those procedures were hardly known when the NLRA was
`adopted in 1935. Because the catchall term “other concerted activi-
`
`ties for the purpose of . . . other mutual aid or protection” appears at
`the end of a detailed list of activities, it should be understood to pro-
`
`tect the same kind of things, i.e., things employees do for themselves
`in the course of exercising their right to free association in the work-
`place.
`
`The NLRA’s structure points to the same conclusion. After speak-
`
`
`
`

`

`3
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`
`Cite as: 584 U. S. ____ (2018)
`
`
`Syllabus
`ing of various “concerted activities” in §7, the statute establishes a
`detailed regulatory regime applicable to each item on the list, but
`gives no hint about what rules should govern the adjudication of class
`
`or collective actions in court or arbitration. Nor is it at all obvious
`what rules should govern on such essential issues as opt-out and opt-
`
`in procedures, notice to class members, and class certification stand-
`
`ards. Telling too is the fact that Congress has shown that it knows
`
`exactly how to specify certain dispute resolution procedures, cf., e.g.,
`
`29 U. S. C. §§216(b), 626, or to override the Arbitration Act, see, e.g.,
`
`15 U. S. C. §1226(a)(2), but Congress has done nothing like that in
`the NLRA.
`
`
`The employees suggest that the NLRA does not discuss class and
`
`collective action procedures because it means to confer a right to use
`existing procedures provided by statute or rule, but the NLRA does
`not say even that much. And if employees do take existing rules as
`they find them, they must take them subject to those rules’ inherent
`limitations, including the principle that parties may depart from
`
`them in favor of individualized arbitration.
`
`In another contextual clue, the employees’ underlying causes of ac-
`
`tion arise not under the NLRA but under the Fair Labor Standards
`
`Act, which permits the sort of collective action the employees wish to
`
`pursue here. Yet they do not suggest that the FLSA displaces the
`
`Arbitration Act, presumably because the Court has held that an iden-
`tical collective action scheme does not prohibit individualized arbitra-
`
`
`tion proceedings, see Gilmer v. Interstate/Johnson Lane Corp., 500
`U. S. 20, 32. The employees’ theory also runs afoul of the rule that
`
`
`
`Congress “does not alter the fundamental details of a regulatory
`scheme in vague terms or ancillary provisions,” Whitman v. American
`
`Trucking Assns., Inc., 531 U. S. 457, 468, as it would allow a catchall
`term in the NLRA to dictate the particulars of dispute resolution pro-
`cedures in Article III courts or arbitration proceedings—matters that
`are usually left to, e.g., the Federal Rules of Civil Procedure, the Ar-
`
`bitration Act, and the FLSA. Nor does the employees’ invocation of
`
`the Norris-LaGuardia Act, a predecessor of the NLRA, help their ar-
`
`gument. That statute declares unenforceable contracts in conflict
`with its policy of protecting workers’ “concerted activities for the pur-
`pose of collective bargaining or other mutual aid or protection,” 29
`U. S. C. §102, and just as under the NLRA, that policy does not con-
`flict with Congress’s directions favoring arbitration.
`
`Precedent confirms the Court’s reading. The Court has rejected
`
`many efforts to manufacture conflicts between the Arbitration Act
`
`
`and other federal statutes, see, e.g. American Express Co. v. Italian
`
`
`
`Colors Restaurant, 570 U. S. 228; and its §7 cases have generally in-
`
`volved efforts related to organizing and collective bargaining in the
`
`
`
`
`
`

`

`4
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` EPIC SYSTEMS CORP. v. LEWIS
`
`
`Syllabus
`workplace, not the treatment of class or collective action procedures
`in court or arbitration, see, e.g., NLRB v. Washington Aluminum Co.,
`370 U. S. 9.
`
`
` Finally, the employees cannot expect deference under Chevron
`
` U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S.
`
` 837, because Chevron’s essential premises are missing. The Board
`
` sought not to interpret just the NLRA, “which it administers,” id., at
`842, but to interpret that statute in a way that limits the work of the
`
` Arbitration Act, which the agency does not administer. The Board
`and the Solicitor General also dispute the NLRA’s meaning, articu-
`lating no single position on which the Executive Branch might be
`
` held “accountable to the people.” Id., at 865. And after “employing
` traditional tools of statutory construction,” id., at 843, n. 9, including
`
`the canon against reading conflicts into statutes, there is no unre-
`
` solved ambiguity for the Board to address. Pp. 9–21.
` No. 16–285, 823 F. 3d 1147, and No. 16–300, 834 F. 3d 975, reversed
`and remanded; No. 16–307, 808 F. 3d 1013, affirmed.
`GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
` C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a
`
`
`
` concurring opinion. GINSBURG, J., filed a dissenting opinion, in which
`
`BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
`
`
`
`
`
`
`

`

`
`
`
`
` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
` Nos. 16–285, 16–300, 16–307
`_________________
` EPIC SYSTEMS CORPORATION, PETITIONER
`
`16–285
` v.
`JACOB LEWIS;
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE SEVENTH CIRCUIT
`
`
`
`
`
`
`
`
`ERNST & YOUNG LLP, ET AL., PETITIONERS
`
`16–300
`
`v.
`STEPHEN MORRIS, ET AL.; AND
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE NINTH CIRCUIT
`
`
`
`NATIONAL LABOR RELATIONS BOARD, PETITIONER
`
`16–307
`v.
`MURPHY OIL USA, INC., ET AL.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE FIFTH CIRCUIT
`
`[May 21, 2018]
`
`JUSTICE GORSUCH delivered the opinion of the Court.
`
`Should employees and employers be allowed to agree
`
`that any disputes between them will be resolved through
`one-on-one arbitration? Or should employees always be
`permitted to bring their claims in class or collective ac-
`tions, no matter what they agreed with their employers?
`
`
`
`

`

`2
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`
`
` EPIC SYSTEMS CORP. v. LEWIS
`
`Opinion of the Court
`As a matter of policy these questions are surely debat-
`
`able. But as a matter of law the answer is clear. In the
`Federal Arbitration Act, Congress has instructed federal
`courts to enforce arbitration agreements according to their
`
`terms—including terms providing for individualized pro-
`ceedings. Nor can we agree with the employees’ sugges-
`tion that the National Labor Relations Act (NLRA) offers a
`
`conflicting command. It is this Court’s duty to interpret
`
`Congress’s statutes as a harmonious whole rather than at
`
`war with one another. And abiding that duty here leads to
`an unmistakable conclusion. The NLRA secures to em-
`ployees rights to organize unions and bargain collectively,
`
`but it says nothing about how judges and arbitrators must
`try legal disputes that leave the workplace and enter the
`courtroom or arbitral forum. This Court has never read a
`
`right to class actions into the NLRA—and for three quar-
`ters of a century neither did the National Labor Relations
`Board. Far from conflicting, the Arbitration Act and the
`NLRA have long enjoyed separate spheres of influence and
`neither permits this Court to declare the parties’ agree-
`ments unlawful.
`
`I
`
`
`The three cases before us differ in detail but not in
`substance. Take Ernst & Young LLP v. Morris. There
`
`Ernst & Young and one of its junior accountants, Stephen
`
`Morris, entered into an agreement providing that they
`
`would arbitrate any disputes that might arise between
`them. The agreement stated that the employee could
`
`choose the arbitration provider and that the arbitrator
`could “grant any relief that could be granted by . . . a
`court” in the relevant jurisdiction. App. in No. 16–300,
`p. 43. The agreement also specified individualized arbi-
`tration, with claims “pertaining to different [e]mployees
`[to] be heard in separate proceedings.” Id., at 44.
`
`
`After his employment ended, and despite having agreed
`
`
`
`

`

`3
`
`
`
`
`
` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`to arbitrate claims against the firm, Mr. Morris sued
`
`Ernst & Young in federal court. He alleged that the firm
`had misclassified its junior accountants as professional
`employees and violated the federal Fair Labor Standards
`Act (FLSA) and California law by paying them salaries
`without overtime pay. Although the arbitration agree-
`ment provided for individualized proceedings, Mr. Morris
`sought to litigate the federal claim on behalf of a nation-
`
`wide class under the FLSA’s collective action provision, 29
`
`U. S. C. §216(b). He sought to pursue the state law claim
`as a class action under Federal Rule of Civil Procedure 23.
`
`Ernst & Young replied with a motion to compel arbitra-
`
`tion. The district court granted the request, but the Ninth
`Circuit reversed this judgment. 834 F. 3d 975 (2016). The
`
`Ninth Circuit recognized that the Arbitration Act gener-
`ally requires courts to enforce arbitration agreements as
`
`written. But the court reasoned that the statute’s “saving
`clause,” see 9 U. S. C. §2, removes this obligation if an
`
`arbitration agreement violates some other federal law.
`
`And the court concluded that an agreement requiring
`individualized arbitration proceedings violates the NLRA
`by barring employees from engaging in the “concerted
`activit[y],” 29 U. S. C. §157, of pursuing claims as a class
`or collective action.
`
`Judge Ikuta dissented. In her view, the Arbitration Act
`protected the arbitration agreement from judicial interfer-
`
`ence and nothing in the Act’s saving clause suggested
`
`otherwise. Neither, she concluded, did the NLRA demand
`a different result. Rather, that statute focuses on protect-
`ing unionization and collective bargaining in the work-
`place, not on guaranteeing class or collective action proce-
`
`dures in disputes before judges or arbitrators.
`
`
`Although the Arbitration Act and the NLRA have long
`coexisted—they date from 1925 and 1935, respectively—
`
`the suggestion they might conflict is something quite new.
`
`Until a couple of years ago, courts more or less agreed that
`
`
`
`
`
`

`

`4
`
`
`
` EPIC SYSTEMS CORP. v. LEWIS
`
`Opinion of the Court
`arbitration agreements like those before us must be en-
`
`
`forced according to their terms. See, e.g., Owen v. Bristol
`Care, Inc., 702 F. 3d 1050 (CA8 2013); Sutherland v. Ernst
`& Young LLP, 726 F. 3d 290 (CA2 2013); D. R. Horton,
`
`
`Inc. v. NLRB, 737 F. 3d 344 (CA5 2013); Iskanian v. CLS
`Transp. Los Angeles, LLC, 59 Cal. 4th 348, 327 P. 3d 129
`(2014); Tallman v. Eighth Jud. Dist. Court, 131 Nev. 71,
`
`359 P. 3d 113 (2015); 808 F. 3d 1013 (CA5 2015) (case
`below in No. 16–307).
`
`
`The National Labor Relations Board’s general counsel
`expressed much the same view in 2010. Remarking that
`
`employees and employers “can benefit from the relative
`simplicity and informality of resolving claims before arbi-
`
`trators,” the general counsel opined that the validity of
`such agreements “does not involve consideration of the
`policies of the National Labor Relations Act.” Memoran-
`dum GC 10–06, pp. 2, 5 (June 16, 2010).
`
`But recently things have shifted. In 2012, the Board—
`for the first time in the 77 years since the NLRA’s adop-
`tion—asserted that the NLRA effectively nullifies the
`
`Arbitration Act in cases like ours. D. R. Horton, Inc., 357
`N. L. R. B. 2277. Initially, this agency decision received a
`cool reception in court. See D. R. Horton, 737 F. 3d, at
`
`355–362. In the last two years, though, some circuits have
`either agreed with the Board’s conclusion or thought
`themselves obliged to defer to it under Chevron U. S. A.
`
`Inc. v. Natural Resources Defense Council, Inc., 467 U. S.
`837 (1984). See 823 F. 3d 1147 (CA7 2016) (case below in
`No. 16–285); 834 F. 3d 975 (case below in No. 16–300);
`
`NLRB v. Alternative Entertainment, Inc., 858 F. 3d 393
`
`(CA6 2017). More recently still, the disagreement has
`grown as the Executive has disavowed the Board’s (most
`
`recent) position, and the Solicitor General and the Board
`
`have offered us battling briefs about the law’s meaning.
`We granted certiorari to clear the confusion. 580 U. S. ___
`(2017).
`
`
`
`

`

`
`
` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`
` II
`We begin with the Arbitration Act and the question of
`
`
` its saving clause.
`Congress adopted the Arbitration Act in 1925 in re-
`
`sponse to a perception that courts were unduly hostile to
`
`arbitration. No doubt there was much to that perception.
`
`Before 1925, English and American common law courts
`routinely refused to enforce agreements to arbitrate dis-
`putes. Scherk v. Alberto-Culver Co., 417 U. S. 506, 510,
`n. 4 (1974). But in Congress’s judgment arbitration had
`more to offer than courts recognized—not least the prom-
`ise of quicker, more informal, and often cheaper resolu-
`tions for everyone involved. Id., at 511. So Congress
`
`directed courts to abandon their hostility and instead treat
`arbitration agreements as “valid, irrevocable, and enforce-
`able.” 9 U. S. C. §2. The Act, this Court has said, estab-
`lishes “a liberal federal policy favoring arbitration agree-
`ments.” Moses H. Cone Memorial Hospital v. Mercury
`
`Constr. Corp., 460 U. S. 1, 24 (1983) (citing Prima Paint
`
`
`Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 (1967));
`see id., at 404 (discussing “the plain meaning of the stat-
`ute” and “the unmistakably clear congressional purpose
`that the arbitration procedure, when selected by the par-
`ties to a contract, be speedy and not subject to delay and
`obstruction in the courts”).
`
`Not only did Congress require courts to respect and
`enforce agreements to arbitrate; it also specifically di-
`
`rected them to respect and enforce the parties’ chosen
`arbitration procedures. See §3 (providing for a stay of
`litigation pending arbitration “in accordance with the
`terms of the agreement”); §4 (providing for “an order
`directing that . . . arbitration proceed in the manner pro-
`vided for in such agreement”).
`Indeed, we have often
`observed that the Arbitration Act requires courts “rigor-
`
`ously” to “enforce arbitration agreements according to
`
`their terms, including terms that specify with whom the
`
`
`
`5
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`

`

`
`
`6
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` EPIC SYSTEMS CORP. v. LEWIS
`
`Opinion of the Court
`parties choose to arbitrate their disputes and the rules
`under which that arbitration will be conducted.” Ameri-
`can Express Co. v. Italian Colors Restaurant, 570 U. S.
`228, 233 (2013) (some emphasis added; citations, internal
`quotation marks, and brackets omitted).
`On first blush, these emphatic directions would seem to
`
`resolve any argument under the Arbitration Act. The
`parties before us contracted for arbitration. They pro-
`
`ceeded to specify the rules that would govern their arbi-
`trations, indicating their intention to use individualized
`rather than class or collective action procedures. And this
`
`much the Arbitration Act seems to protect pretty absolutely.
`See AT&T Mobility LLC v. Concepcion, 563 U. S. 333
`(2011); Italian Colors, supra; DIRECTV, Inc. v. Imburgia,
`577 U. S. ___ (2015). You might wonder if the balance
`
`Congress struck in 1925 between arbitration and litigation
`should be revisited in light of more contemporary devel-
`opments. You might even ask if the Act was good policy
`when enacted. But all the same you might find it difficult
`
`to see how to avoid the statute’s application.
`Still, the employees suggest the Arbitration Act’s saving
`
`
`clause creates an exception for cases like theirs. By its
`
`terms, the saving clause allows courts to refuse to enforce
`arbitration agreements “upon such grounds as exist at law
`or in equity for the revocation of any contract.” §2. That
`
`provision applies here, the employees tell us, because the
`NLRA renders their particular class and collective action
`
`waivers illegal. In their view, illegality under the NLRA is
`
`a “ground” that “exists at law . . . for the revocation” of
`their arbitration agreements, at least to the extent those
`
`agreements prohibit class or collective action proceedings.
`The problem with this line of argument is fundamental.
`
`
`Put to the side the question whether the saving clause was
`
`designed to save not only state law defenses but also
`defenses allegedly arising from federal statutes. See 834
`
`F. 3d, at 991–992, 997 (Ikuta, J., dissenting). Put to the
`
`
`
`
`

`

`7
`
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` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`side the question of what it takes to qualify as a ground
`for “revocation” of a contract. See Concepcion, supra, at
` 352–355 (THOMAS, J., concurring); post, at 1–2 (THOMAS,
`
`
`
`
`J., concurring). Put to the side for the moment, too, even
`the question whether the NLRA actually renders class and
`collective action waivers illegal. Assuming (but not grant-
`ing) the employees could satisfactorily answer all those
`questions, the saving clause still can’t save their cause.
`
`It can’t because the saving clause recognizes only de-
`
`fenses that apply to “any” contract. In this way the clause
`
`establishes a sort of “equal-treatment” rule for arbitration
`contracts. Kindred Nursing Centers L. P. v. Clark, 581
`
`U. S. ___, ___ (2017) (slip op., at 4). The clause “permits
`agreements to arbitrate to be invalidated by ‘generally
`applicable contract defenses, such as fraud, duress, or
`unconscionability.’” Concepcion, 563 U. S., at 339. At the
`same time, the clause offers no refuge for “defenses that
`apply only to arbitration or that derive their meaning from
`
`the fact that an agreement to arbitrate is at issue.” Ibid.
`
`Under our precedent, this means the saving clause does
`
`not save defenses that target arbitration either by name or
`
`by more subtle methods, such as by “interfer[ing] with
`
`fundamental attributes of arbitration.” Id., at 344; see
`Kindred Nursing, supra, at ___ (slip op., at 5).
`
`This is where the employees’ argument stumbles. They
`
`don’t suggest that their arbitration agreements were
`extracted, say, by an act of fraud or duress or in some
`
`other unconscionable way that would render any contract
`
`unenforceable. Instead, they object to their agreements
`precisely because they require individualized arbitration
`
`proceedings instead of class or collective ones. And by
`attacking (only) the individualized nature of the arbitra-
`tion proceedings, the employees’ argument seeks to inter-
`fere with one of arbitration’s fundamental attributes.
`
`We know this much because of Concepcion. There this
`Court faced a state law defense that prohibited as uncon-
`
`
`
`
`
`
`
`

`

`8
`
`
`
` EPIC SYSTEMS CORP. v. LEWIS
`
`Opinion of the Court
`scionable class action waivers in consumer contracts. The
`Court readily acknowledged that the defense formally
`
`applied in both the litigation and the arbitration context.
`
`563 U. S., at 338, 341. But, the Court held, the defense
`
`failed to qualify for protection under the saving clause
`
`because it interfered with a fundamental attribute of
`
`arbitration all the same. It did so by effectively permitting
`
`any party in arbitration to demand classwide proceedings
`despite the traditionally individualized and informal
`nature of arbitration. This “fundamental” change to the
`traditional arbitration process, the Court said, would
`
`“sacrific[e] the principal advantage of arbitration—its
`informality—and mak[e] the process slower, more costly,
`and more likely to generate procedural morass than final
`
`judgment.” Id., at 347, 348. Not least, Concepcion noted,
`
`arbitrators would have to decide whether the named class
`
`representatives are sufficiently representative and typical
`
`
`of the class; what kind of notice, opportunity to be heard,
`
`and right to opt out absent class members should enjoy;
`and how discovery should be altered in light of the class-
`wide nature of the proceedings. Ibid. All of which would
`
`take much time and effort, and introduce new risks and
`costs for both sides. Ibid. In the Court’s judgment, the
`
`virtues Congress originally saw in arbitration, its speed
`and simplicity and inexpensiveness, would be shorn away
`and arbitration would wind up looking like the litigation it
`was meant to displace.
`
` Of course, Concepcion has its limits. The Court recog-
`nized that parties remain free to alter arbitration proce-
`
`dures to suit their tastes, and in recent years some parties
`
`have sometimes chosen to arbitrate on a classwide basis.
`Id., at 351. But Concepcion’s essential insight remains:
`courts may not allow a contract defense to reshape tradi-
`
`tional individualized arbitration by mandating classwide
`
`arbitration procedures without the parties’ consent. Id., at
`344–351; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l
`
`
`
`

`

`9
`
`
`
`
`
` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`Corp., 559 U. S. 662, 684–687 (2010). Just as judicial
`
`antagonism toward arbitration before the Arbitration Act’s
`enactment “manifested itself in a great variety of devices
`
`and formulas declaring arbitration against public policy,”
`Concepcion teaches that we must be alert to new devices
`and formulas that would achieve much the same result
`today. 563 U. S., at 342 (internal quotation marks omit-
`ted). And a rule seeking to declare individualized arbitra-
`tion proceedings off limits is, the Court held, just such a
`device.
`
`The employees’ efforts to distinguish Concepcion fall
`
`
`short. They note that their putative NLRA defense would
`render an agreement “illegal” as a matter of federal statu-
`
`tory law rather than “unconscionable” as a matter of state
`common law. But we don’t see how that distinction makes
`any difference in light of Concepion’s rationale and rule.
`Illegality, like unconscionability, may be a traditional,
`generally applicable contract defense in many cases, in-
`cluding arbitration cases. But an argument that a con-
`
`tract is unenforceable just because it requires bilateral
`
`arbitration is a different creature. A defense of that kind,
`
`Concepcion tells us, is one that impermissibly disfavors
`
`arbitration whether it sounds in illegality or unconscion-
`
`ability. The law of precedent teaches that like cases should
`
`generally be treated alike, and appropriate respect for that
`principle means the Arbitration Act’s saving clause can no
`
`more save the defense at issue in these cases than it did
`the defense at issue in Concepcion. At the end of our
`
`encounter with the Arbitration Act, then, it appears just
`as it did at the beginning: a congressional command re-
`quiring us to enforce, not override, the terms of the arbi-
`tration agreements before us.
`
`III
`
`
`But that’s not the end of it. Even if the Arbitration Act
`
`normally requires us to enforce arbitration agreements
`
`
`
`
`
`

`

`
` 10
`
`
`
` EPIC SYSTEMS CORP. v. LEWIS
`
`Opinion of the Court
`like theirs, the employees reply that the NLRA overrides
`that guidance in these cases and commands us to hold
`
`their agreements unlawful yet.
`
`
`This argument faces a stout uphill climb. When con-
`
`fronted with two Acts of Congress allegedly touching on
`the same topic, this Court is not at “liberty to pick and
`choose among congressional enactments” and must in-
`stead strive “‘to give effect to both.’” Morton v. Mancari,
`417 U. S. 535, 551 (1974). A party seeking to suggest that
`two statutes cannot be harmonized, and that one displaces
`
`the other, bears the heavy burden of showing “‘a clearly
`
`expressed congressional intention’” that such a result
`
`should follow. Vimar Seguros y Reaseguros, S. A. v. M/V
`Sky Reefer, 515 U. S. 528, 533 (1995). The intention must
`
`be “‘clear and manifest.’” Morton, supra, at 551. And in
`approaching a claimed conflict, we come armed with the
`“stron[g] presum[ption]” that repeals by implication are
`“disfavored” and that “Congress will specifically address”
`preexisting law when it wishes to suspend its normal
`
`
`operations in a later statute. United States v. Fausto, 484
`U. S. 439, 452, 453 (1988).
`
`These rules exist for good reasons. Respect for Congress
`as drafter counsels against too easily finding irreconcilable
`
`conflicts in its work. More than that, respect for the sepa-
`
`ration of powers counsels restraint. Allowing judges to
`
`pick and choose between statutes risks transforming them
`from expounders of what the law is into policymakers
`
`choosing what the law should be. Our rules aiming for
`harmony over conflict in statutory interpretation grow
`from an appreciation that it’s the job of Congress by legis-
`lation, not this Court by supposition, both to write the
`laws and to repeal them.
`
`
`Seeking to demonstrate an irreconcilable statutory
`conflict even in light of these demanding standards, the
`employees point to Section 7 of the NLRA. That provision
`
`guarantees workers
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
` 11
`
`
`
` Cite as: 584 U. S. ____ (2018)
`
`Opinion of the Court
`“the right to self-organization, to form, join, or assist
`labor organizations, to bargain collectively through
`representatives of their own choosing, and to engage
`in other concerted activities for the purpose of collec-
`
`
`
`tive bargaining or other mutual aid or protection.” 29
`
`U. S. C. §157.
`From this language, the employees ask us to infer a clear
`and manifest congressional command to displace the
`Arbitration Act and outlaw agreements like theirs.
`But that much inference is more than this Court may
`
`make. Section 7 focuses on the right to organize unions
`and bargain collectively. It may permit unions to bargain
`
`to prohibit arbitration. Cf. 14 Penn Plaza LLC v. Pyett,
`556 U. S. 247, 256–260 (2009). But it does not express
`
`
`approval or disapproval of arbitration. It does not men-
`tion class or collective action procedures. It does not even
`hint at a wish to displace the Arbitration Act—let alone
`accomplish that much clearly and manifestly, as our prec-
`edents demand.
`Neither should any of this come as a surprise. The
`
`notion that Section 7 confers a right to class or collective
`
`actions seems pretty unlikely when you recall that proce-
`dures like that were hardly known when the NLRA was
`
`adopted in 1935. Federal Rule of Civil Procedure 23 didn’t
`create the modern class action until 1966; class arbitration
`didn’t emerge until later still; and even the Fair Labor
`Standards Act’s collective action provision postdated
`
`Section 7 by years. See Rule 23–Class Actions, 28 U. S. C.
`
`App., p. 1258 (1964 ed., Supp. II); 52 Stat. 1069; Concep-
`cion, 563 U. S., at 349; see also Califano v. Yamasaki, 442
`
`U. S. 682, 700–701 (1979) (noting that the “usual rule”
`then was litigation “conducted by and on behalf of individ-
`ual named parties only”). And while some forms of group
`
`litigation existed even in 1935, see 823 F. 3d, at 1154,
`
`Section 7’s failure to mention them only reinforces that
`
`
`
`
`
`
`

`

`
`
`
`
`
` 12
`
`
`
` EPIC SYSTEMS CORP. v. LEWIS
`
`Opinion of the Court
`the statute doesn’t speak to such procedures.
`
`A close look at the employees’ best evidence of a poten-
`tial conflict turns out to reveal no conflict at all. The
`
`employees direct our attentio

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