Chauffeurs, Teamsters, and Helpers Local No. 391 V. Terry - Decision - Dissent

Dissent

Justice Kennedy, with whom Justices O'Connor and Scalia joined, dissented, arguing that the majority’s analogy to an equitable trust action should have been dispositive in this case. He further argued that the relationship between the union and its workers was more similar to the relationship between a trustee and a beneficiary than an attorney and his client, because a union had a duty of fair representation to all of its workers and did not normally be compelled to act as an agent by one beneficiary. He also stated that the relief sought by the plaintiffs was equitable in nature, because it sought to make the plaintiffs whole, and that the majority unnecessarily separated out the legal and equitable issues in this case.

Justice Kennedy defended the historical comparison of the cause of action to the “suits at common law” available in 1791. He felt that to expand the right beyond what was available to plaintiffs at the time of the ratification of the Bill of Rights was nothing more than rewriting the Constitution, stating “e cannot preserve a right existing in 1791 unless we look to history to identify it”. 494 U.S. at 593.