American Judges Association


Date of this Version



Court Review, Volume 53, Issue 3 (2017)


Copyright American Judges Association. Used by permission.


During the Supreme Court’s October 2016 Term, news relating to Donald Trump’s rise to the presidency— including his successful nomination of Neil Gorsuch to fill the vacancy created by Justice Antonin Scalia’s death more than one politically eventful year earlier—frequently overshadowed news of the Court’s rulings. The Court itself contributed to that redirection of the nation’s attention: it decided more than 30 fewer cases than its recent average, and it achieved unanimity at an unusually high rate.1 With 68% of the Court’s rulings falling on the civil side of the ledger,2 however, we have much here to discuss, with significant new rulings in the areas of arbitration, debt collection, disabilities and education, discovery sanctions, equal protection, fair housing, false claims, family law and veterans benefits, jurisdiction, patents, religion, sovereign immunity, speech, takings, and the Trump Administration’s “travel ban.”


The Supreme Court’s long-running campaign to bring state courts into compliance with the Federal Arbitration Act continued this past Term with its ruling in Kindred Nursing Centers Limited Partnership v. Clark.3 Exercising their respective powers of attorney, Janis Clark and Beverly Wellner had completed the paperwork necessary to move family members into a Kentucky nursing home. The contracts with the nursing home stated that all controversies concerning the family members’ stay at the facility would be resolved through binding arbitration, rather than through litigation. When the family members died not long thereafter, Clark and Wellner brought suits against the nursing home on behalf of the decedents’ estates. Were those suits contractually barred? The Kentucky Supreme Court held they were not. A power of attorney does not empower a representative to enter into an arbitration agreement, Kentucky’s high court reasoned, unless it contains a statement explicitly conferring that authority. Otherwise, the Kentucky justices said, agents could waive their principals’ core constitutional rights of access to the courts and trial by jury.