Michael Showalter (independent) has posted Jarkesy and Gravitational Pull: The Supreme Court's Approach To Nonoriginalist Precedent and Its Implications (18 pages) on SSRN. Here is the abstract:
In a June 2024 concurring opinion, U.S. Supreme Court Justice Brett Kavanaugh argued that text and history should exert a “gravitational pull” on the interpretation of precedent. The majority opinion he joined in SEC v. Jarkesy, decided a week later, provides an illustration.
Jarkesy was a battle of text and history versus mixed precedent. The question presented was whether the SEC could assess civil money penalties against Jarkesy through administrative adjudication without judicial process. The majority held that it could not. A dissent emphasized that Atlas Roofing, a 1977 case, sustained OSHA civil money penalties imposed through administrative adjudication. But the dissent made no argument from text or ratification-era history—because no plausible text-and-history defense of Atlas Roofing exists. Scholars across the spectrum agree that as a matter of text and history, the Constitution prohibits the government from depriving Americans of vested property rights outside judicial process. So the majority declined to give Atlas Roofing the broader reading advocated by the dissent. Under the gravitational-pull principle, when original understanding points a certain direction, misaligned precedent should be pulled back toward it.
This essay examines the Supreme Court’s gravitational-pull approach in Jarkesy and discusses its implications for other constitutional provisions. The Court’s doctrine in various other areas contains statements that the current Court likely considers indefensible as a matter of text and history. The Court likely will be slow to overrule precedent in these areas—as Justice Neil Gorsuch recently observed, the current Court overrules precedent only about half as often as the Warren Court and Burger Court did. But the Court likely will continue to pull its jurisprudence toward original understanding, particularly when it believes that a precedent’s misalignment with original understanding is obvious.
Agreed. Except when the Justices don't want to do this, they won't. See Trump v. United States. But doing it much of the time may be the most one can expect.
Posted at 6:05 AM