Justice STEVENS, with whom Justice MARSHALL joins, dissenting.
Section 1 of the Federal Arbitration Act (FAA) states:
"[N]othing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1.
The Court today, in holding that the FAA compels enforcement of arbitration clauses even when claims of age discrimination are at issue, skirts the antecedent question whether the coverage of the Act even extends to arbitration clauses contained in employment contracts, regardless of the subject matter of the claim at issue. In my opinion, arbitration clauses contained in employment agreements are specifically exempt from coverage of the FAA, and for that reason respondent Interstate/Johnson Lane Corporation cannot, pursuant to the FAA, compel petitioner to submit his claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., to binding arbitration.
Petitioner did not, as the majority correctly notes, ante, at 25, n. 2, raise the issue of the applicability of the FAA to employment contracts at any stage of the proceedings below. Nor did petitioner raise the coverage issue in his petition for writ of certiorari before this Court. It was amici who first raised the argument in their briefs in support of petitioner prior to oral argument of the case. See Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae; Brief for American Association of Retired Persons as Amicus Curiae; Brief for Lawyers' Committee for Civil Rights Under Law as Amicus Curiae 17-18.
Notwithstanding the apparent waiver of the issue below, I believe that the Court should reach the issue of the coverage of the FAA to employment disputes because resolution of the question is so clearly antecedent to disposition of this case. On a number of occasions, this Court has considered issues waived by the parties below and in the petition for certiorari because the issues were so integral to decision of the case that they could be considered "fairly subsumed" by the actual questions presented. See, e.g., Teague v. Lane, 489 U.S. 288 , 300, 109 S.Ct. 1060, 1069-1070, 103 L.Ed.2d 334 (1989) ("The question of retroactivity with regard to petitioner's fair cross section claim has been raised only in an amicus brief. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim. Moreover, our sua sponte consideration of retroactivity is far from novel" (citations omitted)); Batson v. Kentucky, 476 U.S. 79 , 84-85, n. 4, 106 S.Ct. 1712, 1716, n. 4, 90 L.Ed.2d 69 (1986) (notwithstanding petitioner's seemingly deliberate failure to raise the equal protection issue, "[w]e agree with the State that resolution of petitioner's claim properly turns on application of equal protection principles and express no view on the merits of any of petitioner's Sixth Amendment arguments"); Mapp v. Ohio, 367 U.S. 643 , 646, n. 3, 81 S.Ct. 1684, 1686, n. 3, 6 L.Ed.2d 1081 (1961) ("Although appellant chose to urge what may have appeared to be the surer ground for favorable disposition and did not insist that Wolf [v. Colorado, 338 U.S. 25 , 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) ] be overruled, the amicus curiae, who was also permitted to participate in the oral argument, did urge the Court to overrule Wolf "). See also R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice § 6.26 (6th ed. 1986) (describing rule concerning need for presenting questions below and in petition for certiorari, and deviations from rule).