Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 12 (2003)

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Cite as: 539 U. S. 444 (2003)

Rehnquist, C. J., dissenting

minations by the Supreme Court of South Carolina. See Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 475-476 (1989).

Arguably the interpretation of the parties' agreement should have been made in the first instance by the arbitrator, rather than the court. See Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79 (2002). Because the decision to conduct a class-action arbitration was correct as a matter of law, and because petitioner has merely challenged the merits of that decision without claiming that it was made by the wrong decisionmaker, there is no need to remand the case to correct that possible error.

Accordingly, I would simply affirm the judgment of the Supreme Court of South Carolina. Were I to adhere to my preferred disposition of the case, however, there would be no controlling judgment of the Court. In order to avoid that outcome, and because Justice Breyer's opinion expresses a view of the case close to my own, I concur in the judgment. See Screws v. United States, 325 U. S. 91, 134 (1945) (Rut-ledge, J., concurring in result).

Chief Justice Rehnquist, with whom Justice O'Connor and Justice Kennedy join, dissenting.

The parties entered into contracts with an arbitration clause that is governed by the Federal Arbitration Act (FAA), 9 U. S. C. 1 et seq. The Supreme Court of South Carolina held that arbitration under the contracts could proceed as a class action even though the contracts do not by their terms permit class-action arbitration. The plurality now vacates that judgment and remands the case for the arbitrator to make this determination. I would reverse because this determination is one for the courts, not for the arbitrator, and the holding of the Supreme Court of South Carolina contravenes the terms of the contracts and is therefore pre-empted by the FAA.

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