Without originalism, as this case makes clear, there are practically no limits to government power.
Jarkesy v. SEC “poses a straightforward question,” wrote Chief Justice John Roberts in the opinion of the Court: “whether the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against him for securities fraud.” He explains why it does, and why other carve-outs do not apply. He concludes: “A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator.”
Looking with apparent disgust at Justice Sonia Sotomayor’s dissent, Roberts wrote, “Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very opposite of the separation of powers that the Constitution demands.”
It is indeed. Yet somehow, someway, Sotomayor has convinced herself that she is the one defending separation of powers by ruling that the SEC’s procedure here was A-OK.
To review, the SEC had initiated a fraud case with itself, that it would try with itself, with no jury, and for which it would hand out punishments itself. But that isn’t the real separation-of-powers issue here, according to Sotomayor. The real issue is the judicial branch telling the executive branch that it can’t violate separation of powers.
Seriously, read Sotomayor for yourself: “Today’s ruling is part of a disconcerting trend: When it comes to the separation of powers, this Court tells the American public and its coordinate branches that it knows best.”
Well, yes, when the Bill of Rights is implicated and Americans are being denied the trials by jury before an Article III judge that it requires, the Supreme Court should stop that and make sure the other branches are following the Constitution.
Sotomayor continues:
There are good reasons for Congress to set up a scheme like the SEC’s. It may yield important benefits over jury trials in federal court, such as greater efficiency and expertise, transparency and reasoned decision making, as well as uniformity, predictability, and greater political accountability. . . . Others may believe those benefits are overstated, and that a federal jury is a better check on government overreach. . . . Those arguments take place against the backdrop of a philosophical (and perhaps ideological) debate on whether the number of agencies and authorities properly corresponds to the ever-increasing and evolving problems faced by our society.
This Court’s job is not to decide who wins this debate. These are policy considerations for Congress in exercising its legislative judgment and constitutional authority to decide how to tackle today’s problems. It is the electorate, and the Executive to some degree, not this Court, that can and should provide a check on the wisdom of those judgments.
Here’s the relevant text of the Seventh Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” I’m not seeing any exceptions for “greater efficiency and expertise, transparency and reasoned decision making, as well as uniformity, predictability, and greater political accountability,” or anything about this right’s suspension in the face of “the ever-increasing and evolving problems faced by our society.”
It is not a policy debate whether Americans have the right to a jury trial in civil cases. They do. That Congress and the courts have treated that fundamental question as though it is a policy debate, through many years of spawning new federal agencies, should not obscure the fact that the Seventh Amendment says what it says.
The trick that the government pulls here is to reclassify something that can be a suit at common law — securities fraud — as an administrative action. If all Congress has to do is pass a law that says something that has long been considered the province of courts now falls under an administrative agency with no jury trial, then the Seventh Amendment is a dead letter.
Sotomayor complains that the Court’s decision “prescribes artificial constraints on what modern-day adaptable governance must look like.” No, it reiterates constitutional constraints on what modern-day adaptable governance must look like. And “must” is a key word there. This stuff isn’t optional.
But that’s a problem for Sotomayor, who writes:
In telling Congress that it cannot entrust certain public-rights matters to the Executive because it must bring them first into the Judiciary’s province, the majority oversteps its role and encroaches on Congress’s constitutional authority. Its decision offends the Framers’ constitutional design so critical to the preservation of individual liberty: the division of our Government into three coordinate branches to avoid the concentration of power in the same hands.
She apparently does not see that the structure of these SEC proceedings did exactly that by allowing the SEC to write rules, enforce them, and adjudicate them.
Sotomayor doubles down:
By giving respondents a jury trial, even one that the Constitution does not require, the majority may think that it is protecting liberty. That belief, too, is deeply misguided. The American People should not mistake judicial hubris with the protection of individual rights.
Jury trials do protect individual liberty, or at least that is the judgment the Founders made in guaranteeing them in the Bill of Rights. As Justice Neil Gorsuch’s concurring opinion notes, they were partially informed by experience. Under British rule, he writes, “Colonial administrators routinely steered enforcement actions out of local courts and into vice-admiralty tribunals where they thought they would win more often.” And: “The abuses of these courts featured prominently in the calls for revolution.”
When the time came for the Bill of Rights, the Founders wanted to make sure that didn’t happen again. Congress has allowed it to happen again through laws enabling procedures like the one the SEC used against Jarkesy. The Supreme Court today said that the right to trial by jury in civil cases actually counts. That’s judicial review, not “judicial hubris.”
The SEC isn’t any worse off in its ability to punish financial crimes. The procedure at issue here was only created in 2010. Gorsuch writes: “The agency is free to pursue all of its charges against Mr. Jarkesy. And it is free to pursue them exactly as it had always done until 2010: In a court, before a judge, and with a jury.” You know, as the Constitution says.
Thank goodness we don’t live in a world where Sotomayor’s dissent, with which the other two progressive justices agreed, is the opinion of the Court. Jarkesy makes clear that without originalism, there are practically no limits to government power.