At Volokh Conspiracy, Steven Calabresi celebrates the Supreme Court decision yesterday in SEC v. Jarkesy: SEC v. Jarkesy: A Win for the Separation of Powers and the Right to Civil Jury Trial. From the introduction:
Chief Justice Robert wrote an excellent, thorough, and overwhelmingly persuasive majority opinion in S.E.C. v. Jarkesy, 603 U.S. __ (2024), holding that the Securities and Exchange Commission could not try civil fraud suits before its own Administrative Law Judges. It must instead try them in federal District Court where the Seventh Amendment right to a civil jury trial must be available in all cases which were "[suits] at common law," as opposed to suits in equity and in admiralty.
The Supreme Court did today for the Seventh Amendment roughly what it did for the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008). It held, in a narrow opinion, that Congress and the President cannot completely ignore the Seventh Amendment, just as they used to completely ignore the Second Amendment before Heller was decided. This is the case at least in civil fraud cases brought by the S.E.C.
The Chief Justice's opinion was joined by five other justices: Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts' opinion examined originalist, textualist, and doctrinal sources of law. In much of the opinion, Chief Justice Roberts makes an overwhelmingly powerful argument that S.E.C. fraud cases are in the words of the Seventh Amendment "[s]uits at common law" which can only be tried by a jury and not suits in equity or admiralty where the right to jury trial has not historically been available.
I agree that this is predominately a textualist/originalist result. The majority and dissent scrap over which way precedent points, but I think that's largely beside the point because the textualist/originalist case is strong and the precedent is, in any event, not well entrenched or the source of substantial reliance.
But I also agree with the analysis from a while back by Will Baude that the Seventh Amendment isn't really the source of the SEC's constitutional problem in this case. The Seventh Amendment guarantees a jury rather than a judge. The SEC process in Jarkesy did not even provide an Article III judge — just an executive officer with a judicial-sounding title. As a result, the SEC's process violated separation of powers by having an executive officer exercise the judicial power (and, I would think, also violated the due process clause). Justice Gorsuch in concurrence notes the interrelatedness of Article III, the due process clause and the Seventh Amendment as applied to Jarkesy. He does not go so far as to say that the case should come out the same way even without the Seventh Amendment, but I would (and I think Professor Baude would as well.)
Posted at 11:00 PM