The Supreme Court’s conservative justices seemed sympathetic Wednesday to concerns that the Securities and Exchange Commission’s (SEC) use of in-house judges could violate the Constitution’s right to a jury trial.
During arguments that spanned over two hours, justices pressed for clarity on why the SEC should be permitted to bring fraud claims before an administrative law judge (ALJ) when those same claims would trigger a jury trial if brought in court. The case, SEC v. Jarkesy, arises out of George R. Jarkesy’s constitutional challenge to the administrative proceedings he has been caught in since the agency charged him with fraud relating to his investment activities in 2013.
“What sense does it make to say the full constitutional protections apply when a private party is suing you [for money], but we’re going to discard those core constitutional, historic protections when the government comes after you for the same money?” Justice Brett Kavanaugh asked Principal Deputy Solicitor General Brian H. Fletcher, who argued for the SEC.
After finding him in violation of securities laws, the SEC ordered Jarkesy, along with his investment adviser, Patriot28, to pay a $300,000 civil penalty, according to court documents.
“The purpose of the separation of powers is to protect individual liberty, and your individual liberty is even more — or at least equally affected — when the government is coming after you,” Kavanaugh continued.
Congress permitted the SEC to choose whether it would bring enforcement actions in the courts or through its own in-house adjudication process when it passed the Dodd-Frank Act after the 2008 financial crisis. The Fifth Circuit ruled in 2022 that the SEC’s use of AJLs violated the Seventh Amendment’s right to a jury trial.
The appeals court also found the removal restrictions on ALJs and Congress’ grant of legislative authority unconstitutional, but the justices spent little time considering these other two questions on Wednesday. Discussion during oral arguments largely focused on the right to a jury trial, hinging on the distinction between public rights and private rights.
“The extent of impact of government agencies on daily life today is enormously more significant than it was 50 years ago,” Chief Justice John Roberts said. “Should that be a concern for us?”
“The government is much more likely to affect you and proceed against you before one of its own agencies than in court,” he continued. “And as general matter, it does seem to me to be curious, that, unlike most constitutional rights, you have that right [to a jury trial] until the government decides that they don’t want you to have it. That doesn’t seem to me the way the Constitution normally works.”
Fletcher argued that Supreme Court’s precedent backs the SEC’s position.
Justice Neil Gorsuch noted that the SEC’s use of ALJs is a “relatively new thing” and that the agency’s power has been expanded over the decades.
“This is not your grandfather’s SEC,” Gorsuch said.
Congress can’t take a claim traditionally litigated in the courts and give it to agencies to enforce, Jarkesy’s lawyer Michael McColloch argued.
Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson pushed back on the claim, pressing to clarify how his argument fits with the high court’s precedent, which the government argued supported its position.
“I am grateful to the justices for taking this case. A fair and impartial hearing is all we ever asked for, and we didn’t get that at the SEC,” Jarkesy said in a statement. “It was quite the opposite.”
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