The Supreme Court’s conservative justices suggested Thursday that their liberal colleagues completely misrepresented precedent that forms the foundation of their dissenting opinion defending an executive agency’s ability to act as “prosecutor, judge, and jury.”
Justice Sonia Sotomayor, dissenting with Justices Elena Kagan and Ketanji Brown Jackson from the majority’s ruling in SEC v. Jarkesy, claims the ruling “upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government.” Conservative justices took issue with Sotomayor’s selective reading of cases used to support her view, with Justice Neil Gorsuch likening the dissent’s approach to the Court’s precedents as “a picky child at the dinner table.”
“It selects only a small handful while leaving much else untouched,” Gorsuch wrote.
The majority upheld in SEC v. Jarkesy defendants’ right to a jury trial when they face civil penalties brought by the Securities and Exchange Commission (SEC),
The case centered on Congress’ decision to give the SEC the authority to adjudicate enforcement actions in-house using its own administrative law judges (ALJ), rather than in the federal courts, when it passed the Dodd-Frank Act in 2010. George R. Jarkesy, who became subject to the SEC’s in-house proceedings over a decade ago when he was charged with fraud related to his investment activities, argued this practice deprived him of his Seventh Amendment right to a jury trial.
The majority agreed, but the dissent objected, pointing to a “public rights” exception to jury trials.
Public rights, as the majority explains, include matters such as “the collection of revenue; aspects of customs law; immigration law; relations with Indian tribes; the administration of public lands.” The dissent argued the exception is broader.
“When a claim belongs to the Government as sovereign, the Constitution permits Congress to enact new statutory obligations, prescribe consequences for the breach of those obligations, and then empower federal agencies to adjudicate such violations and impose the appropriate penalty,” Sotomayor wrote.
In a footnote of the majority ruling, Chief Justice John Roberts wrote that one of the key cases Sotomayor cites does not support the claims she asserts.
“[The dissent] must be reading from a different case than we are,” Roberts wrote in a footnote.
“Nowhere does Oceanic Steam Navigation say that the public rights exception applies to cases concerning the securities markets or interstate commerce more broadly,” Roberts wrote. “The rules the dissent purports to locate in Oceanic Steam Navigation are therefore wholly inapposite.”
Roberts: Sotoyamor “must be reading from a different case than we are.” pic.twitter.com/bwmHaXXgCV
— Dan McLaughlin (@baseballcrank) June 27, 2024
Roberts also took issue with Sotomayor’s use of another case, which he noted was not “among this Court’s most celebrated cases” and is regarded as “a departure from our legal traditions.”
“The dissent chants ‘Atlas Roofing’ like a mantra, but no matter how many times it repeats those words, it cannot give Atlas Roofing substance that it lacks,” Roberts wrote.
Gorsuch wrote that the dissent’s understanding of public rights is “wholly at odds with precedents both old and new.”
“Nor is the dissent shy about its real motivation—and it has nothing to do with respect for precedent but much more to do with a ‘power grab’: Holding the government to the Constitution’s promise of a jury trial, the dissent insists, would impose ‘constraints on what,’ in its view, ‘modern day adaptable governance must look like,’” Gorsuch wrote. “All of which, at bottom, amounts to little more than a complaint with the Constitution’s revolutionary promise of popular oversight of government officials—and with those judges who would honor that promise.”
