Rodriguez de Quijas v. Shearson/American Express, Inc./Dissent Stevens

Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.

The Court of Appeals refused to follow Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), a controlling precedent of this Court. As the majority correctly acknowledges, ante, at 484, the Court f Appeals therefore engaged in an indefensible brand of judicial activism. We, of course, are not subject to the same restraint when asked to upset one of our own precedents. But when our earlier opinion gives a statutory provision concrete meaning, which Congress elects not to amend during the ensuing 31/2 decades, our duty to respect Congress' work product is strikingly similar to the duty of other federal courts to respect our work product.

In the final analysis, a Justice's vote in a case like this depends more on his or her views about the respective lawmaking responsibilities of Congress and this Court than on conflicting policy interests. Judges who have confidence in their own ability to fashion public policy are less hesitant to change the law than those of us who are inclined to give wide latitude to the views of the voters' representatives on nonconstitutional matters. Cf. Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). As I pointed out years ago, Alberto-Culver Co. v. Scherk, 484 F.2d 611, 615-620 (CA7 1973) (dissenting opinion), rev'd, 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), there are valid policy and textual arguments on both sides regarding the interrelation of federal securities and arbitration Acts. See ante, at 479-484. None of these arguments, however, carries sufficient weight to tip the balance between judicial and legislative authority and overturn an interpretation of an Act of Congress that has been settled for many years.

I respectfully dissent.