*1 P R E L I M I N A R Y P R I N T Volume 603 U. S. Part 1 Pages 109–203 OFFICIAL REPORTS OF
THE SUPREME COURT June 27, 2024
REBECCA A. WOMELDORF reporter of decisions NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. *2 OCTOBER TERM, 2023
Syllabus
SECURITIES AND EXCHANGE COMMISSION v .
JARKESY et al.
certiorari to the united states court of appeals for
the fth circuit
No. 22–859. Argued November 29, 2023—Decided June 27, 2024 In the aftermath of the Wall Street Crash of 1929, Congress passed a
suite of laws designed to combat securities fraud and increase market transparency. Three such statutes are relevant: The Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940. These Acts respectively govern the registration of securi- ties, the trading of securities, and the activities of investment advisers. Although each regulates different aspects of the securities markets, their pertinent provisions—collectively referred to by regulators as “the antifraud provisions,” App. to Pet. for Cert. 73a, 202a—target the same basic behavior: misrepresenting or concealing material facts.
To enforce these Acts, Congress created the Securities and Exchange Commission. The SEC may bring an enforcement action in one of two forums. It can fle suit in federal court, or it can adjudicate the matter itself. The forum the SEC selects dictates certain aspects of the litiga- tion. In federal court, a jury fnds the facts, an Article III judge pre- sides, and the Federal Rules of Evidence and the ordinary rules of dis- covery govern the litigation. But when the SEC adjudicates the matter in-house, there are no juries. The Commission presides while its Divi- sion of Enforcement prosecutes the case. The Commission or its de- legee—typically an administrative law judge—also fnds facts and decides discovery disputes, and the SEC's Rules of Practice govern.
One remedy for securities violations is civil penalties. Originally, the SEC could only obtain civil penalties from unregistered investment advisers in federal court. Then, in 2010, Congress passed the Dodd- Frank Wall Street Reform and Consumer Protection Act. The Act au- thorized the SEC to impose such penalties through its own in-house proceedings.
Shortly after passage of the Dodd-Frank Act, the SEC initiated an enforcement action for civil penalties against investment adviser George Jarkesy, Jr., and his frm, Patriot28, LLC, for alleged violations of the “antifraud provisions” contained in the federal securities laws. The SEC opted to adjudicate the matter in-house. As relevant, the fnal order determined that Jarkesy and Patriot28 had committed securities violations and levied a civil penalty of $300,000. Jarkesy and Patriot28 v.
Syllabus
petitioned for judicial review. The Fifth Circuit vacated the order on the ground that adjudicating the matter in-house violated the defend- ants' Seventh Amendment right to a jury trial.
Held : When the SEC seeks civil penalties against a defendant for securi-
ties fraud, the Seventh Amendment entitles the defendant to a jury trial. Pp. 120–141.
(a) The question presented by this case—whether the Seventh
Amendment entitles a defendant to a jury trial when the SEC seeks
civil penalties for securities fraud—is straightforward. Following the
analysis set forth in
Granfnanciera, S. A.
v.
Nordberg
,
(b) The Court frst explains why this action implicates the Seventh Amendment. Pp. 121–126.
(1) The right to trial by jury is “of such importance and occupies
so frm a place in our history and jurisprudence that any seeming cur-
tailment of the right” has always been and “should be scrutinized with
the utmost care.”
Dimick Schiedt
, 293 U. S. 474, 486. When the
British attempted to evade American juries by siphoning adjudications
to juryless admiralty, vice admiralty, and chancery courts, the Ameri-
cans protested and eventually cited the British practice as a justifcation
for declaring Independence. In the Revolution's aftermath, concerns
that the proposed Constitution lacked a provision guaranteeing a jury
trial right in civil cases was perhaps the “most success[ful]” critique
leveled against the document during the ratifcation debates. The Fed-
eralist No. 83, p. 495. To fx that faw, the Framers promptly adopted
the Seventh Amendment. Ever since, “every encroachment upon [the
jury trial right] has been watched with great jealousy.”
Parsons
v.
Bedford
,
(2) The Seventh Amendment guarantees that in “[s]uits at common
law . . . the right of trial by jury shall be preserved.” The right itself
is not limited to the “common-law forms of action recognized” when the
Seventh Amendment was ratifed.
Curtis Loether
,
Syllabus
To determine whether a suit is legal in nature, courts must consider whether the cause of action resembles common law causes of action, and whether the remedy is the sort that was traditionally obtained in a court of law. Of these factors, the remedy is the more important. And in this case, the remedy is all but dispositive. For respondents' alleged fraud, the SEC seeks civil penalties, a form of monetary relief. Such relief is legal in nature when it is designed to punish or deter the wrong- doer rather than solely to “restore the status quo.” Tull , 481 U. S., at 422. The Acts condition the availability and size of the civil penalties available to the SEC based on considerations such as culpability, deter- rence, and recidivism. See §§ 77h–1, 78u–2, 80b–3. These factors go beyond restoring the status quo and so are legal in nature. The SEC is also not obligated to use civil penalties to compensate victims. SEC civil penalties are thus “a type of remedy at common law that could only be enforced in courts of law.” Tull , 481 U. S., at 422. This suit implicates the Seventh Amendment right and a defendant would be enti- tled to a jury on these claims.
The close relationship between federal securities fraud and common
law fraud confrms that conclusion. Both target the same basic conduct:
misrepresenting or concealing material facts. By using “fraud” and
other common law terms of art when it drafted the federal securities
laws, Congress incorporated common law fraud prohibitions into those
laws. This Court therefore often considers common law fraud princi-
ples when interpreting federal securities law. See,
e. g., Dura Pharma-
ceuticals, Inc.
v.
Broudo
,
(c) Because the claims at issue here implicate the Seventh Amend- ment, a jury trial is required unless the “public rights” exception ap- plies. Under this exception, Congress may assign the matter for decision to an agency without a jury, consistent with the Seventh Amendment. For the reasons below, the exception does not apply. Pp. 127–140.
(1) The Constitution prevents Congress from “withdraw[ing] from
judicial cognizance any matter which, from its nature, is the subject
of a suit at the common law.”
Murray's Lessee Hoboken Land &
Improvement Co.
,
Syllabus
nature of an action at common law, then the matter presumptively con-
cerns private rights, and adjudication by an Article III court is manda-
tory.
Stern
,
The Court also recognizes a class of cases concerning “public rights.”
Such matters “historically could have been determined exclusively by
[the executive and legislative] branches.”
Id.,
at 493 (internal quota-
tion marks omitted). No involvement by an Article III court in the
initial adjudication of public rights claims is necessary. Certain catego-
ries that have been recognized as falling within the exception include
matters concerning: the collection of revenue; aspects of customs law;
immigration law; relations with Indian tribes; the administration of pub-
lic lands; and the granting of public benefts. The Court's opinions gov-
erning this exception have not always spoken in precise terms. But
“even with respect to matters that arguably fall within the scope of the
`public rights' doctrine, the presumption is in favor of Art. III courts.”
Northern Pipeline Constr. Co. Marathon Pipe Line Co.
,
(2) In
Granfnanciera
, this Court previously considered whether
the Seventh Amendment guarantees the right to a jury trial “in the face
of Congress' decision to allow a non-Article III tribunal to adjudicate”
a statutory “fraud claim.” 492 U. S., at 37, 50. There the issue was
whether Congress's designation of fraudulent conveyance actions as
“core [bankruptcy] proceedings” authorized non-Article III bankruptcy
judges to hear them without juries.
Id.
, at 50. The Court held that
the designation was not permissible, even under the public rights excep-
tion. To determine whether the claim implicated the Seventh Amend-
ment, the Court applied the principles distilled in
Tull.
Surveying
English cases and considering the remedy these suits provided, the
Court concluded that fraudulent conveyance actions were “quintessen-
tially suits at common law.”
Granfnanciera
,
(3) Granfnanciera effectively decides this case. The action here was brought under the “anti-fraud provisions” of the federal securities laws and provide civil penalties that can “only be enforced in courts of law.” Tull , 481 U. S., at 422. They target the same basic conduct as common law fraud, employ the same terms of art, and operate pursuant to similar legal principles. In short, this action involves a “matter[ ] of private rather than public right.” Granfnanciera , 492 U. S., at 56. P. 134.
Syllabus
(4) The SEC claims that the public rights exception applies because
Congress created “new statutory obligations, impose[d] civil penalties
for their violation, and then commit[ted] to an administrative agency the
function of deciding whether a violation ha[d] in fact occurred.” Brief
for Petitioner 21.
Granfnanciera
does away with much of the SEC's
argument. Congress cannot “conjure away the Seventh Amendment
by mandating that traditional legal claims be . . . taken to an administra-
tive tribunal.” 492 U. S., at 52. The SEC's argument that
Granfnan-
ciera
does not apply because the Government is the party bringing this
action also fails. What matters is the substance of the suit, not where
it is brought, who brings it, or how it is labeled.
Northern Pipeline
Constr. Co.
,
(5) The Court's opinion in
Atlas Roofng Co. Occupational Safety
and Health Review Comm'n
,
(d) The Court does not reach the remaining issues in this case.
Pp. 140–141.
Roberts , C. J., delivered the opinion of the Court, in which Thomas , Alito , Gorsuch , Kavanaugh , and Barrett , JJ., joined. Gorsuch , J., fled a concurring opinion, in which Thomas , J., joined, post , p. 141. Soto- mayor , J., fled a dissenting opinion, in which Kagan and Jackson , JJ., joined, post , p. 167.
Principal Deputy Solicitor General Fletcher argued the cause for petitioner. On the briefs were Solicitor General
Counsel
Prelogar , Principal Deputy Assistant Attorney General Boynton, Deputy Solicitor General Stewart, Vivek Suri, Ni- cole Frazer Reaves, Mark B. Stern, Joshua M. Salzman, Daniel Aguilar, Megan Barbero, Michael A. Conley, and Dominick V. Freda.
S. Michael McColloch argued the cause for respondents. With him on the brief was Karen L. Cook. * *Briefs of amici curiae urging reversal were fled for Administrative Law Scholars by Alan B. Morrison, Richard J. Pierce, Jr., and Ronald M . Levin ; for the Association of Administrative Law Judges by Hyland Hunt, Ruthanne M. Deutsch, and Alexandra Mansbach ; for the National Treasury Employees Union by Julie M. Wilson, Paras N. Shah, and Alli- son C. Giles ; for the North American Securities Administrators Associa- tion, Inc., by Vincente L. Martinez ; for Public Citizen by Allison M. Zieve and Nicolas A. Sansone ; and for John M. Golden et al. by Thomas H. Lee, pro se .
Briefs of amici curiae urging affrmance were fled for the State of West Virginia et al. by Patrick Morrisey, Attorney General of West Virginia, Lindsay S. See, Solicitor General, Michael R. Williams, Principal Deputy Solicitor General, and Spencer J. Davenport, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Treg Taylor of Alaska, Tim Griffn of Arkansas, Ashley Moody of Florida, Chris Carr of Georgia, Raúl Labrador of Idaho, Brenna Bird of Iowa, Jeff Landry of Louisiana, Lynn Fitch of Mississippi, Andrew Bailey of Missouri, Austin Knudsen of Montana, Michael T. Hil- gers of Nebraska, Alan Wilson of South Carolina, Jonathan Skrmetti of Tennessee, Ken Paxton of Texas, Sean D. Reyes of Utah, and Bridget Hill of Wyoming; for the American Bankers Association et al. by Manuel G. Berrelez, David Baris, and Thomas Pinder ; for the Americans for Pros- perity Foundation by Michael Pepson ; for the Atlantic Legal Foundation by Lawrence S. Ebner ; for the Cato Institute by Anastasia P. Boden and Thomas A. Berry ; for the Chamber of Commerce of the United States of America et al. by Steven A. Engel, Michael H. McGinley, Elizabeth Gau- dio Milito, Patrick J. Moran, and Jennifer B. Dickey ; for the Competitive Enterprise Institute by Devin Watkins and Dan Greenberg ; for CTIA— The Wireless Association et al. by Thomas M. Johnson, Jr., and Jeremy J. Broggi ; for Energy Transfer LP by William S. Scherman ; for the In- dependent Women's Law Center by Kathryn E. Tarbert and Gene C. Schaerr ; for the Institute for Justice et al. by Robert E. Johnson, Robert Belden, Jared McClain, and Paul Avelar ; for the Liberty Justice Center
Opinion of the Court
Chief Justice Roberts delivered the opinion of the Court.
In 2013, the Securities and Exchange Commission initiated an enforcement action against respondents George Jarkesy, Jr., and Patriot28, LLC, seeking civil penalties for alleged securities fraud. The SEC chose to adjudicate the matter in-house before one of its administrative law judges, rather than in federal court where respondents could have proceeded before a jury. We consider whether the Seventh Amendment permits the SEC to compel respondents to defend themselves before the agency rather than before a jury in federal court.
I A In the aftermath of the Wall Street Crash of 1929, Con- gress passed a suite of laws designed to combat securities fraud and increase market transparency. Three such stat- utes are relevant here: The Securities Act of 1933, the Secu- by Loren A. Seehase ; for Morris & Dickson Co., LLC, by Hashim M. Mooppan and Jeffrey R. Johnson ; for the Pioneer Public Interest Law Center by Ashley C. Parrish, Frank J. Bailey, and I. Cason Hewgley IV ; for TotalEnergies Gas & Power North America, Inc., by Jeremy C. Mar- well, William S. Scherman, and Matthew X. Etchemendy ; for the Wash- ington Legal Foundation by John M. Masslon II and Cory L. Andrews ; for Phillip Goldstein et al. by Nicolas Morgan, Alex Spiro, Derek L. Shaf- fer, and William A. Burck ; for David Julian by Matthew T. Martens and Timothy Perla ; for Edwin Meese III et al. by Daniel R. Benson and Amit R. Vora ; and for Anthony Michael Sabino , pro se. Briefs of amici curiae were fled for Advancing American Freedom et al. by J. Marc Wheat ; for the America First Policy Institute by Richard Polk Lawson and Jessica Hart Steinmann ; for the American Bar Associa- tion by Deborah Enix-Ross, Mary-Christine Sungaila, and Kirsten M. Castañeda ; for the Claremont Institute's Center for Constitutional Juris- prudence by John C. Eastman and Anthony T. Caso ; for the Federal Ad- ministrative Law Judges Conference by Ronald W. Chapman II ; for the Forum of United States Administrative Law Judges by Steven A. Glazer ; for the New Civil Liberties Alliance by Margaret A. Little, Richard A. Samp, and Mark S. Chenoweth ; for Jed H. Shugerman by Jeffrey B. Dubner ; for Andrew N. Vollmer , pro se ; and for Ilan Wurman , pro se. v.
Opinion of the Court
rities Exchange Act of 1934, and the Investment Advisers
Act of 1940. 48 Stat. 74, 15 U. S. C. §§ 77a
et seq
.; 48 Stat.
881, 78a
et seq
.; 54 Stat. 847, 80b–1
et seq
. These Acts re-
spectively govern the registration of securities, the trading
of securities, and the activities of investment advisers.
Their protections are mutually reinforcing and often overlap.
See
Lorenzo SEC
,
The three antifraud provisions are Section 17(a) of the Securities Act, Section 10(b) of the Securities Exchange Act, and Section 206 of the Investment Advisers Act. Section 17(a) prohibits regulated individuals from “obtain[ing] money or property by means of any untrue statement of a material fact,” as well as causing certain omissions of mate- rial fact. 15 U. S. C. § 77q(a)(2). As implemented by Rule 10b–5, Section 10(b) prohibits using “any device, scheme, or artifce to defraud,” making “untrue statement[s] of . . . mate- rial fact,” causing certain material omissions, and “engag- [ing] in any act . . . which operates or would operate as a fraud.” 17 CFR § 240.10b–5 (2023); see 15 U. S. C. § 78j(b). And fnally, Section 206(b), as implemented by Rule 206(4)– 8, prohibits investment advisers from making “any untrue statement of a material fact” or engaging in “fraudulent, de- ceptive, or manipulative” acts with respect to investors or prospective investors. 17 CFR §§ 275.206(4)–8(a)(1), (2); see 15 U. S. C. § 80b–6(4).
To enforce these Acts, Congress created the SEC. The SEC may bring an enforcement action in one of two forums. First, the Commission can adjudicate the matter itself. See §§ 77h–1, 78u–2, 78u–3, 80b–3. Alternatively, it can fle a suit in federal court. See §§ 77t, 78u, 80b–9. The SEC's choice of forum dictates two aspects of the litigation: The
Opinion of the Court
procedural protections enjoyed by the defendant, and the remedies available to the SEC.
Procedurally, these forums differ in who presides and makes legal determinations, what evidentiary and discovery rules apply, and who fnds facts. Most pertinently, in fed- eral court a jury fnds the facts, depending on the nature of the claim. See U. S. Const., Amdt. 7. In addition, a life- tenured, salary-protected Article III judge presides, see Art. III, § 1, and the litigation is governed by the Federal Rules of Evidence and the ordinary rules of discovery.
Conversely, when the SEC adjudicates the matter in- house, there are no juries. Instead, the Commission pre- sides and fnds facts while its Division of Enforcement prose- cutes the case. The Commission may also delegate its role as judge and factfnder to one of its members or to an administrative law judge (ALJ) that it employs. See 15 U. S. C. § 78d–1. In these proceedings, the Commission or its delegee decides discovery disputes, see, e . g ., 17 CFR § 201.232(b), and the SEC's Rules of Practice govern, see 17 CFR § 201.100 et seq . The Commission or its delegee also determines the scope and form of permissible evidence and may admit hearsay and other testimony that would be inad- missible in federal court. See §§ 201.320, 201.326.
When a Commission member or an ALJ presides, the full Commission can review that offcial's fndings and conclu- sions, but it is not obligated to do so. See § 201.360; 15 U. S. C. § 78d–1. Judicial review is also available once the proceedings have concluded. See §§ 77i(a), 78y(a)(1), 80b– 13(a). But such review is deferential. By law, a reviewing court must treat the agency's factual fndings as “conclusive” if suffciently supported by the record, e. g. , § 78y(a)(4); see Richardson Perales , 402 U. S. 389, 401 (1971), even when they rest on evidence that could not have been admitted in federal court.
The remedy at issue in this case, civil penalties, also origi- nally depended upon the forum chosen by the SEC. Except
Opinion of the Court
in cases against registered entities, the SEC could obtain civil penalties only in federal court. See Insider Trading Sanctions Act of 1984, § 2, 98 Stat. 1264; Securities Enforce- ment Remedies and Penny Stock Reform Act of 1990, §§ 101, 201–202, 104 Stat. 932–933, 935–938. That is no longer so. In 2010, Congress passed the Dodd-Frank Wall Street Re- form and Consumer Protection Act (Dodd-Frank Act), 124 Stat. 1376. That Act “ma[de] the SEC's authority in admin- istrative penalty proceedings coextensive with its authority to seek penalties in Federal court.” H. R. Rep. No. 111–687, p. 78 (2010). In other words, the SEC may now seek civil penalties in federal court, or it may impose them through its own in-house proceedings. See Dodd-Frank Act, § 929P(a), 124 Stat. 1862–1864 (codifed in relevant part as amended at 15 U. S. C. §§ 77h–1(g), 78u–2(a), 80b–3(i)(1)).
Civil penalties rank among the SEC's most potent enforce- ment tools. These penalties consist of fnes of up to $725,000 per violation. See §§ 77h–1(g), 78u–2, 80b–3(i). And the SEC may levy these penalties even when no investor has actually suffered fnancial loss. See SEC Blavin , 760 F. 2d 706, 711 (CA6 1985) ( per curiam ).
B
Shortly after passage of the Dodd-Frank Act, the SEC began investigating Jarkesy and Patriot28 for securities fraud. Between 2007 and 2010, Jarkesy launched two in- vestment funds, raising about $24 million from 120 “accred- ited” investors—a class of investors that includes, for exam- ple, fnancial institutions, certain investment professionals, and high net worth individuals. App. to Pet. for Cert. 72a– 73a, 110a, n. 72; see 17 CFR § 230.501. Patriot28, which Jarkesy managed, served as the funds' investment adviser. According to the SEC, Jarkesy and Patriot28 misled inves- tors in at least three ways: (1) by misrepresenting the invest- ment strategies that Jarkesy and Patriot28 employed, (2) by lying about the identity of the funds' auditor and prime bro-
Opinion of the Court
ker, and (3) by infating the funds' claimed value so that Jar- kesy and Patriot28 could collect larger management fees. App. to Pet. for Cert. 80a–86a, 95a–105a. The SEC initiated an enforcement action, contending that these actions violated the antifraud provisions of the Securities Act, the Securities Exchange Act, and the Investment Advisers Act, and sought civil penalties and other remedies.
Relying on the new authority conferred by the Dodd- Frank Act, the SEC opted to adjudicate the matter itself rather than in federal court. In 2014, the presiding ALJ issued an initial decision. Id ., at 155a–225a. The SEC re- viewed the decision and then released its fnal order in 2020. Id ., at 71a–154a. The fnal order levied a civil penalty of $300,000 against Jarkesy and Patriot28, directed them to cease and desist committing or causing violations of the anti- fraud provisions, ordered Patriot28 to disgorge earnings, and prohibited Jarkesy from participating in the securities indus- try and in offerings of penny stocks. Id ., at 152a–154a. Jarkesy and Patriot28 petitioned for judicial review. 34 F. 4th 446, 450 (CA5 2022). A divided panel of the Fifth Circuit granted their petition and vacated the fnal order. Id ., at 449–450. Applying a two-part test from Granfnan- ciera, S. A. Nordberg , 492 U. S. 33 (1989), the panel held that the agency's decision to adjudicate the matter in-house violated Jarkesy's and Patriot28's Seventh Amendment right to a jury trial. 34 F. 4th, at 451. First, the panel deter- mined that because these SEC antifraud claims were “akin to [a] traditional action[ ] in debt,” a jury trial would be re- quired if this case were brought in an Article III court. Id. , at 454; see id. , at 453–455. It then considered whether the “public rights” exception applied. That exception permits Congress, under certain circumstances, to assign an action to an agency tribunal without a jury, consistent with the Sev- enth Amendment. See id ., at 455–459. The panel con- cluded that the exception did not apply, and that therefore the case should have been brought in federal court, where a
Opinion of the Court
jury could have found the facts pertinent to the defendants' fraud liability. Based on this Seventh Amendment violation, the panel vacated the fnal order. Id ., at 459.
It also identifed two further constitutional problems. First, it determined that Congress had violated the nondele- gation doctrine by authorizing the SEC, without adequate guidance, to choose whether to litigate this action in an Arti- cle III court or to adjudicate the matter itself. See id ., at 459–463. The panel also found that the insulation of the SEC ALJs from executive supervision with two layers of for-cause removal protections violated the separation of pow- ers. See id ., at 463–466. Judge Davis dissented. Id ., at 466–479. The Fifth Circuit denied rehearing en banc, 51 F. 4th 644 (2022), and we granted certiorari, 600 U. S. 902 (2023).
II
This case poses a straightforward question: whether the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against him for securities
fraud. Our analysis of this question follows the approach set forth in Granfnanciera and Tull United States , 481 U. S. 412 (1987). The threshold issue is whether this action implicates the Seventh Amendment. It does. The SEC's antifraud provisions replicate common law fraud, and it is well established that common law claims must be heard by a jury.
Since this case does implicate the Seventh Amendment, we next consider whether the “public rights” exception to Article III jurisdiction applies. This exception has been held to permit Congress to assign certain matters to agen- cies for adjudication even though such proceedings would not afford the right to a jury trial. The exception does not apply here because the present action does not fall within any of the distinctive areas involving governmental preroga- tives where the Court has concluded that a matter may be resolved outside of an Article III court, without a jury. The 121
Opinion of the Court
Seventh Amendment therefore applies and a jury is re- quired. Since the answer to the jury trial question resolves this case, we do not reach the nondelegation or removal issues.
A
We frst explain why this action implicates the Seventh Amendment.
The right to trial by jury is “of such importance and occu-
pies so frm a place in our history and jurisprudence that any
seeming curtailment of the right” has always been and
“should be scrutinized with the utmost care.”
Dimick
v.
Schiedt
, 293 U. S. 474, 486 (1935). Commentators recog-
nized the right as “the glory of the English law,” 3 W. Black-
stone, Commentaries on the Laws of England 379 (8th ed.
1778) (Blackstone), and it was prized by the American colo-
nists. When the English began evading American juries by
siphoning adjudications to juryless admiralty, vice admiralty,
and chancery courts, Americans condemned Parliament for
“subvert[ing] the rights and liberties of the colonists.” Res-
olutions of the Stamp Act Congress, Art. VIII (Oct. 19, 1765),
reprinted in Sources of Our Liberties 270, 271 (R. Perry & J.
Cooper eds. 1959). Representatives gathered at the First
Continental Congress demanded that Parliament respect the
“great and inestimable privilege of being tried by their peers
of the vicinage, according to the [common] law.” 1 Journals
of the Continental Congress, 1774–1789, p. 69 (Oct. 14, 1774)
(W. Ford ed. 1904). And when the English continued to try
Americans without juries, the Founders cited the practice as
a justifcation for severing our ties to England. See Decla-
ration of Independence ¶20; see generally
Erlinger United
States
,
In the Revolution's aftermath, perhaps the “most success- [ful]” critique leveled against the proposed Constitution was its “want of a . . . provision for the trial by jury in civil *15 122 v.
Opinion of the Court
cases.” The Federalist No. 83, p. 495 (C. Rossiter ed. 1961)
(A. Hamilton) (emphasis deleted). The Framers promptly
adopted the Seventh Amendment to fx that faw. In so
doing, they “embedded” the right in the Constitution, secur-
ing it “against the passing demands of expediency or conven-
ience.”
Reid Covert
,
By its text, the Seventh Amendment guarantees that in “[s]uits at common law, . . . the right of trial by jury shall be preserved.” In construing this language, we have noted that the right is not limited to the “common-law forms of action recognized” when the Seventh Amendment was rati- fed. Curtis Loether , 415 U. S. 189, 193 (1974). As Jus- tice Story explained, the Framers used the term “common law” in the Amendment “in contradistinction to equity, and admiralty, and maritime jurisprudence.” Parsons , 3 Pet., at
446. The Amendment therefore “embrace[s] all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume.” Id ., at 447.
The Seventh Amendment extends to a particular statutory claim if the claim is “legal in nature.” Granfnanciera , 492 U. S., at 53. As we made clear in Tull , whether that claim is statutory is immaterial to this analysis. See 481 U. S., at 414–415, 417–425. In that case, the Government sued a real estate developer for civil penalties in federal court. The de- veloper responded by invoking his right to a jury trial. Al- though the cause of action arose under the Clean Water Act, the Court surveyed early cases to show that the statutory nature of the claim was not legally relevant. “Actions by the Government to recover civil penalties under statutory provisions,” we explained, “historically ha[d] been viewed as [a] type of action in debt requiring trial by jury.” Id ., at 418–419. To determine whether a suit is legal in nature, we
Opinion of the Court
directed courts to consider the cause of action and the rem- edy it provides. Since some causes of action sound in both law and equity, we concluded that the remedy was the “more important” consideration. Id. , at 421 (brackets and internal quotation marks omitted); see id ., at 418–421.
In this case, the remedy is all but dispositive. For re-
spondents' alleged fraud, the SEC seeks civil penalties, a
form of monetary relief. While monetary relief can be legal
or equitable, money damages are the prototypical common
law remedy. See
Mertens
v.
Hewitt Associates
, 508 U. S.
248, 255 (1993). What determines whether a monetary rem-
edy is legal is if it is designed to punish or deter the wrong-
doer, or, on the other hand, solely to “restore the status quo.”
Tull
,
To start, the Securities Exchange Act and the Investment Advisers Act condition the availability of civil penalties on six statutory factors: (1) whether the alleged misconduct in- volved fraud, deceit, manipulation, or deliberate or reckless disregard for regulatory requirements, (2) whether it caused harm, (3) whether it resulted in unjust enrichment, account- ing for any restitution made, (4) whether the defendant had previously violated securities laws or regulations, or had previously committed certain crimes, (5) the need for de- terrence, and (6) other “matters as justice may require.” §§ 78u–2(c), 80b–3(i)(3). Of these, several concern culpabil-
Opinion of the Court
ity, deterrence, and recidivism. Because they tie the avail- ability of civil penalties to the perceived need to punish the defendant rather than to restore the victim, such considera- tions are legal rather than equitable.
The same is true of the criteria that determine the size of the available remedy. The Securities Act, the Securities Exchange Act, and the Investment Advisers Act establish three “tiers” of civil penalties. See §§ 77h–1(g)(2), 78u–2(b), 80b–3(i)(2). Violating a federal securities law or regulation exposes a defendant to a frst tier penalty. A second tier penalty may be ordered if the violation involved fraud, de- ceit, manipulation, or deliberate or reckless disregard for regulatory requirements. Finally, if those acts also resulted in substantial gains to the defendant or losses to another, or created a “signifcant risk” of the latter, the defendant is sub- ject to a third tier penalty. Each successive tier authorizes a larger monetary sanction. See ibid.
Like the considerations that determine the availability of civil penalties in the frst place, the criteria that divide these tiers are also legal in nature. Each tier conditions the avail- able penalty on the culpability of the defendant and the need for deterrence, not the size of the harm that must be reme- died. Indeed, showing that a victim suffered harm is not even required to advance a defendant from one tier to the next. Since nothing in this analysis turns on “restor[ing] the status quo,” Tull , 481 U. S., at 422, these factors show that these civil penalties are designed to be punitive.
The fnal proof that this remedy is punitive is that the SEC
is not obligated to return any money to victims. See
id
., at
422–423. Although the SEC can choose to compensate in-
jured shareholders from the civil penalties it collects, see 15
U. S. C. § 7246(a), it admits that it is not required to do so,
see App. to Pet. for Cert. 124a, n. 116 (citing 17 CFR
§ 201.1100). Such a penalty by defnition does not “restore
the status quo” and can make no pretense of being equitable.
Tull
,
Opinion of the Court
In sum, the civil penalties in this case are designed to pun- ish and deter, not to compensate. They are therefore “a type of remedy at common law that could only be enforced in courts of law.” Ibid . That conclusion effectively decides that this suit implicates the Seventh Amendment right, and that a defendant would be entitled to a jury on these claims. See id ., at 421–423.
The close relationship between the causes of action in this
case and common law fraud confrms that conclusion. Both
target the same basic conduct: misrepresenting or concealing
material facts. Compare 15 U. S. C. §§ 77q(a)(2), 78j(b), 80b–
6(4); 17 CFR §§ 240.10b–5(b), 275.206(4)–8(a)(1), with Re-
statement (Third) of Torts: Liability for Economic Harm,
§§ 9, 13 (2018); see also,
e. g.
,
Pauwels Deloitte LLP
, 83
F. 4th 171, 189–190 (CA2 2023) (identifying the elements of
common law fraud under New York law);
Conroy
v.
Regents
of Univ. of Cal.
,
Congress's decision to draw upon common law fraud cre-
ated an enduring link between federal securities fraud and
its common law “ancestor.”
Foster
v.
Wilson
,
Opinion of the Court
ted). Our precedents therefore often consider common law
fraud principles when interpreting federal securities law.
E
.
g
.,
Dura Pharmaceuticals, Inc.
v.
Broudo
, 544 U. S. 336,
343–344 (2005) (evaluating pleading requirements in light
of the “common-law roots of the securities fraud action”);
Schreiber
v.
Burlington Northern, Inc.
,
That is not to say that federal securities fraud and common
law fraud are identical. In some respects, federal securities
fraud is narrower. For example, federal securities law does
not “convert every common-law fraud that happens to in-
volve securities into a violation.”
SEC Zandford
, 535
U. S. 813, 820 (2002). It only targets certain subject matter
and certain disclosures. In other respects, federal securities
fraud is broader. For example, federal securities fraud em-
ploys the burden of proof typical in civil cases, while its com-
mon law analogue traditionally used a more stringent stand-
ard. See
Herman & MacLean
v.
Huddleston
,
Opinion of the Court B Although the claims at issue here implicate the Seventh Amendment, the Government and the dissent argue that a jury trial is not required because the “public rights” excep- tion applies. Under this exception, Congress may assign the matter for decision to an agency without a jury, consist- ent with the Seventh Amendment. But this case does not fall within the exception, so Congress may not avoid a jury trial by preventing the case from being heard before an Arti- cle III tribunal.
The Constitution prohibits Congress from “withdraw[ing]
from judicial cognizance any matter which, from its nature,
is the subject of a suit at the common law.”
Murray's Les-
see
v.
Hoboken Land & Improvement Co.
, 18 How. 272, 284
(1856). Once such a suit “is brought within the bounds of
federal jurisdiction,” an Article III court must decide it, with
a jury if the Seventh Amendment applies.
Stern Mar-
shall
,
On that basis, we have repeatedly explained that matters concerning private rights may not be removed from Article III courts. Murray's Lessee , 18 How., at 284; Granfnan- ciera , 492 U. S., at 51–52; Stern , 564 U. S., at 484. A hall- mark that we have looked to in determining if a suit concerns v.
Opinion of the Court
private rights is whether it “is made of `the stuff of the tradi-
tional actions at common law tried by the courts at West-
minster in 1789.' ”
Id.
, at 484 (quoting
Northern Pipeline
Constr. Co. Marathon Pipe Line Co.
,
At the same time, our precedent has also recognized a class of cases concerning what we have called “public rights.” Such matters “historically could have been determined ex- clusively by [the executive and legislative] branches,” id. , at 493 (internal quotation marks omitted), even when they were “presented in such form that the judicial power [wa]s capable of acting on them,” Murray's Lessee , 18 How., at 284. In contrast to common law claims, no involvement by an Article III court in the initial adjudication is necessary in such a case. The decision that frst recognized the public rights excep- tion was Murray's Lessee . In that case, a federal customs
collector failed to deliver public funds to the Treasury, so the Government issued a “warrant of distress” to compel him to produce the withheld sum. Id ., at 274–275. Pursuant to the warrant, the Government eventually seized and sold a plot of the collector's land. Id. , at 274. Plaintiffs later at- tacked the purchaser's title, arguing that the initial seizure was void because the Government had audited the collec- tor's account and issued the warrant itself without judicial involvement. Id ., at 275.
The Court upheld the sale. It explained that pursuant to its power to collect revenue, the Government could rely on “summary proceedings” to compel its offcers to “pay such balances of the public money” into the Treasury “as may be in their hands.” Id ., at 281, 285. Indeed, the Court ob- served, there was an unbroken tradition—long predating the founding—of using these kinds of proceedings to “enforce 129
Opinion of the Court
payment of balances due from receivers of the revenue.” Id ., at 278; see id ., at 281. In light of this historical practice, the Government could issue a valid warrant without intrud- ing on the domain of the Judiciary. See id ., at 280–282. The challenge to the sale thus lacked merit.
This principle extends beyond cases involving the collec-
tion of revenue. In
Oceanic Steam Navigation Co.
v.
Stra-
nahan
,
Opinion of the Court
In Ex parte Bakelite Corp ., we upheld a law authorizing the President to impose tariffs on goods imported by “unfair methods of competition.” 279 U. S. 438, 446 (1929). The law permitted him to set whatever tariff was necessary, sub- ject to a statutory cap, to produce fair competition. If the President was “satisfed the unfairness [was] extreme,” the law even authorized him to “exclude[ ]” foreign goods en- tirely. Ibid . Because the political branches had tradition- ally held exclusive power over this feld and had exercised it, we explained that the assessment of tariffs did not implicate Article III. Id ., at 458, 460–461.
This Court has since held that certain other historic cate-
gories of adjudications fall within the exception, including
relations with Indian tribes, see
United States
v.
Jicarilla
Apache Nation
,
Opinion of the Court
The Court “has not `defnitively explained' the distinction be-
tween public and private rights,” and we do not claim to
do so today.
Oil States Energy Services, LLC Greene's
Energy Group, LLC
,
Nevertheless, since Murray's Lessee , this Court has typi- cally evaluated the legal basis for the assertion of the doc- trine with care. The public rights exception is, after all, an exception . It has no textual basis in the Constitution and must therefore derive instead from background legal princi- ples. Murray's Lessee itself, for example, took pains to jus- tify the application of the exception in that particular in- stance by explaining that it fowed from centuries-old rules concerning revenue collection by a sovereign. See 18 How., at 281–285. Without such close attention to the basis for each asserted application of the doctrine, the exception would swallow the rule.
[2] The dissent would brush away these careful distinctions and unfurl a new rule: that whenever Congress passes a statute “entitl[ing] the Govern- ment to civil penalties,” the defendant's right to a jury and a neutral Arti- cle III adjudicator disappears. See post , at 168 (opinion of Sotomayor , J.). It bases this rule not in the constitutional text (where it would fnd no foothold), nor in the ratifcation history (where again it would fnd no sup- port), nor in a careful, category-by-category analysis of underlying legal principles of the sort performed by Murray's Lessee (which it does not attempt), nor even in a case-specifc functional analysis (also not at- tempted). Instead, the dissent extrapolates from the outcomes in cases concerning unrelated applications of the public rights exception and from one opinion, Atlas Roofng Co. Occupational Safety and Health Review Comm'n, 430 U. S. 442 (1977). The result is to blur the distinctions our cases have drawn in favor of the legally unsound principle that just be- cause the Government may extract civil penalties in administrative tribu- nals in some contexts, it must always be able to do so in all contexts.
The dissent also appeals to practice, ignoring that the statute Jarkesy and Patriot28 have been prosecuted under is barely over a decade old. It is also unclear how practice could transmute a private right into a public one, or how the absence of legal challenges brought by one generation could waive the individual rights of the next. Practice may be probative when it refects the settled institutional understandings of the branches. That case is far weaker when the rights of individuals are directly at stake. *25 132
Opinion of the Court
From the beginning we have emphasized one point: “To
avoid misconstruction upon so grave a subject, we think it
proper to state that we do not consider congress can . . .
withdraw from judicial cognizance any matter which, from
its nature, is the subject of a suit at the common law, or in
equity, or admiralty.”
Murray's Lessee
, 18 How., at 284.
We have never embraced the proposition that “practical”
considerations alone can justify extending the scope of the
public rights exception to such matters.
Stern
, 564 U. S., at
501. “[E]ven with respect to matters that arguably fall
within the scope of the `public rights' doctrine, the presump-
tion is in favor of Art. III courts.”
Northern Pipeline Con-
str. Co.
,
This is not the frst time we have considered whether the Seventh Amendment guarantees the right to a jury trial “in the face of Congress' decision to allow a non-Article III tri- bunal to adjudicate” a statutory “fraud claim.” 492 U. S., at 37, 50. We did so in Granfnanciera , and the principles identifed in that case largely resolve this one.
Granfnanciera involved a statutory action for fraudulent conveyance. As codifed in the Bankruptcy Code, the claim permitted a trustee to void a transfer or obligation made by the debtor before bankruptcy if the debtor “received less than a reasonably equivalent value in exchange for such transfer or obligation.” 11 U. S. C. § 548(a)(2)(A) (1982 ed., Supp. V). Actions for fraudulent conveyance were well
Opinion of the Court
known at common law. 492 U. S., at 43. Even when Con-
gress added these claims to the Bankruptcy Code in 1978,
see 92 Stat. 2600, it preserved parties' rights to a trial by
jury,
The issue in Granfnanciera was whether this designation was permissible under the public rights exception. Ibid . We explained that it was not. Although Congress had as- signed fraudulent conveyance claims to bankruptcy courts, that assignment was not dispositive. See id ., at 52. What mattered, we explained, was the substance of the suit. “[T]raditional legal claims” must be decided by courts, “whether they originate in a newly fashioned regulatory scheme or possess a long line of common-law forebears.” Ibid. To determine whether the claim implicated the Sev- enth Amendment, the Court applied the principles distilled in Tull . We examined whether the matter was “from [its] nature subject to `a suit at common law.' ” 492 U. S., at 56 (some internal quotation marks omitted); see id ., at 43–50. A survey of English cases showed that “actions to recover . . . fraudulent transfers were often brought at law in late 18th-century England.” Id ., at 43. The remedy the trustee sought was also one “traditionally provided by law courts.” Id ., at 49. Fraudulent conveyance actions were thus “quint- essentially suits at common law.” Id ., at 56.
We also considered whether these actions were “closely intertwined” with the bankruptcy regime. Id. , at 54. Some bankruptcy claims, such as “creditors' hierarchically ordered claims to a pro rata share of the bankruptcy res,” id. , at 56, are highly interdependent and require coordination. Resolving such claims fairly is only possible if they are all submitted at once to a single adjudicator. Otherwise, par- ties with lower priority claims can rush to the courthouse to *27 134
Opinion of the Court
seek payment before higher priority claims exhaust the es- tate, and an orderly disposition of a bankruptcy is impossible. Other claims, though, can be brought in standalone suits, be- cause they are neither prioritized nor subordinated to re- lated claims. Since fraudulent conveyance actions fall into that latter category, we concluded that these actions were not “closely intertwined” with the bankruptcy process. Id ., at 54. We also noted that Congress had already authorized jury trials for certain bankruptcy matters, demonstrating that jury trials were not generally “incompatible” with the overall regime. Id ., at 61–62 (internal quotation marks omitted).
We accordingly concluded that fraudulent conveyance ac- tions were akin to “suits at common law” and were not insep- arable from the bankruptcy process. Id ., at 54, 56. The public rights exception therefore did not apply, and a jury was required. Granfnanciera effectively decides this case. Even when
an action “originate[s] in a newly fashioned regulatory scheme,” what matters is the substance of the action, not where Congress has assigned it. Id ., at 52. And in this case, the substance points in only one direction.
According to the SEC, these are actions under the “anti-
fraud provisions of the federal securities laws” for “fraudu-
lent conduct.” App. to Pet. for Cert. 72a–73a (opinion of the
Commission). They provide civil penalties, a punitive rem-
edy that we have recognized “could only be enforced in
courts of law.”
Tull
,
Opinion of the Court
Notwithstanding Granfnanciera , the SEC contends the public rights exception still applies in this case because Con- gress created “new statutory obligations, impose[d] civil pen- alties for their violation, and then commit[ted] to an adminis- trative agency the function of deciding whether a violation ha[d] in fact occurred.” Brief for Petitioner 21 (internal quotation marks omitted).
The foregoing from Granfnanciera already does away with much of the SEC's argument. Congress cannot “con- jure away the Seventh Amendment by mandating that tradi- tional legal claims be . . . taken to an administrative tribu- nal.” 492 U. S., at 52. Nor does the fact that the SEC action “originate[d] in a newly fashioned regulatory scheme” permit Congress to siphon this action away from an Article III court. Ibid . The constructive fraud claim in Granf- nanciera was also statutory, see id. , at 37, but we neverthe- less explained that the public rights exception did not apply. Again, if the action resembles a traditional legal claim, its statutory origins are not dispositive. See id ., at 52, 56.
The SEC's sole remaining basis for distinguishing Granf- nanciera is that the Government is the party prosecuting this action. See Brief for Petitioner 26–28; see also Tr. of Oral Arg. 25 (Principal Deputy Solicitor General) (the “criti- cal distinction” in the public rights analysis is “enforcement by the executive”); id. , at 26 (identifying as “the constitution- ally relevant distinction” that “this is something that has been assigned to a federal agency to enforce”). But we have never held that “the presence of the United States as a proper party to the proceeding is . . . suffcient” by itself to trigger the exception. Northern Pipeline Constr. Co. , 458 U. S., at 69, n. 23 (plurality opinion). Again, what matters is the substance of the suit, not where it is brought, who brings it, or how it is labeled. See ibid . The object of this SEC action is to regulate transactions between private indi- viduals interacting in a pre-existing market. To do so, the *29 136 v.
Opinion of the Court
Government has created claims whose causes of action are modeled on common law fraud and that provide a type of remedy available only in law courts. This is a common law suit in all but name. And such suits typically must be adju- dicated in Article III courts.
5
The principal case on which the SEC and the dissent rely
is
Atlas Roofng Co. Occupational Safety and Health Re-
view Commission
,
The litigation in Atlas Roofng arose under the Occupa- tional Safety and Health Act of 1970 (OSH Act), a federal regulatory regime created to promote safe working condi- tions. Id. , at 444–445. The Act authorized the Secretary of Labor to promulgate safety regulations, and it empowered the Occupational Safety and Health Review Commission (OSHRC) to adjudicate alleged violations. Id ., at 445–446. If a party violated the regulations, the agency could impose civil penalties. Id. , at 446.
Unlike the claims in Granfnanciera and this action, the OSH Act did not borrow its cause of action from the common law. Rather, it simply commanded that “[e]ach employer . . . shall comply with occupational safety and health standards [3] The dissent chides us for “leav[ing] open the possibility that Granf- nanciera might have overruled Atlas Roofng .” Post , at 190, n. 8 (opinion of Sotomayor , J.). But the author of Atlas Roofng certainly thought that Granfnanciera may have done so. See Granfnanciera , 492 U. S., at 79 (White, J., dissenting) (“Perhaps . . . Atlas Roofng is no longer good law after today's decision.”); see also id ., at 71, n. 1 ( Granfnanciera “can be read as overruling or severely limiting” Atlas Roofng ).
Opinion of the Court
promulgated under this chapter.” 84 Stat. 1593, 29 U. S. C.
§ 654(a)(2) (1976 ed.). These standards bring no common law
soil with them. Cf.
Hansen
,
Facing enforcement actions, two employers alleged that
the adjudicatory authority of the OSHRC violated the Sev-
enth Amendment. See
Atlas Roofng
,
The cases that Atlas Roofng relied upon did not extend the public rights exception to “traditional legal claims.” Granfnanciera , 492 U. S., at 52. Instead, they applied the exception to actions that were “ `not . . . suit[s] at common *31 138 v.
Opinion of the Court
law or in the nature of such . . . suit[s].' ”
Atlas Roofng
, 430
U. S
.
, at 453 (quoting
NLRB
v.
Jones & Laughlin Steel Corp.
,
301 U. S. 1, 48 (1937)); see
Atlas Roofng
, 430 U. S., at 450–
451 (discussing,
e. g.
,
Murray's Lessee
,
Ex parte Bakelite
Corp.
,
Helvering Mitchell
, 303 U. S. 391 (1938), and
Oce-
anic Steam Navigation Co
.). Indeed, the Court recognized
that if a case did involve a common law action or its equiva-
lent, a jury was required. See 430 U. S., at 455 (“ `[W]here
the action involves rights and remedies recognized at com-
mon law, it must preserve to parties their right to a jury
trial.' ” (quoting
Pernell Southall Realty
,
Atlas Roofng
concluded that Congress could assign the
OSH Act adjudications to an agency because the claims were
“unknown to the common law.”
Id.
, at 461. The case there-
fore does not control here, where the statutory claim is “ `in
the nature of ' ” a common law suit.
Id.
, at 453 (quoting
Jones & Laughlin
,
The reasoning of Atlas Roofing cannot support any broader rule. The dissent chants “ Atlas Roofng ” like a mantra, but no matter how many times it repeats those words, it cannot give Atlas Roofng substance that it lacks. [4] Reading the dissent, one might also think that Atlas Roofng is among this Court's most celebrated cases. As the concurrence shows, Atlas Roofng represents a departure from our legal traditions. See post , at 152–159 (opinion of Gorsuch , J.).
This view is also refected in the scholarship. Commentators writing comprehensively on Article III and agency adjudication have often simply
Opinion of the Court
Even as
Atlas Roofng
invoked the public rights exception,
the defnition it offered of the exception was circular. The
exception applied, the Court said, “in cases in which `public
rights' are being litigated—
e. g.
, cases in which the Govern-
ment sues in its sovereign capacity to enforce public rights
created by statutes.”
After Atlas Roofng , this Court clarifed in Tull that the Seventh Amendment does apply to novel statutory regimes, so long as the claims are akin to common law claims. See 481 U. S., at 421–423. In addition, we have explained that the public rights exception does not apply automatically ignored the case. See, e. g ., R. Fallon, Of Legislative Courts, Administra- tive Agencies, and Article III, 101 Harv. L. Rev. 915 (1988) (no citation to Atlas Roofng ); J. Harrison, Public Rights, Private Privileges, and Article III, 54 Ga. L. Rev. 143 (2019) (same); W. Baude, Adjudication Outside Arti- cle III, 133 Harv. L. Rev. 1511 (2020) (same).
Others who have considered it have offered nothing but a variety of criticisms. See, e . g ., R. Kirst, Administrative Penalties and the Civil Jury: The Supreme Court's Assault on the Seventh Amendment, 126 U. Pa. L. Rev. 1281, 1294 (1978) (through its “careless use of precedent,” Atlas Roofng did “not recogniz[e] or [mis]understood” “careful distinctions de- veloped by . . . earlier judges”); G. Young, Federal Courts & Federal Rights, 45 Brooklyn L. Rev. 1145, 1153 (1979) (“The Atlas Court . . . failed to offer an adequate justifcation for its interpretation of the seventh amendment, either in terms of precedent or the language and history of the amendment.”); M. Redish & D. La Fave, Seventh Amendment Right to Jury Trial in Non-Article III Proceedings: A Study in Dysfunctional Constitutional Theory, 4 Wm. & Mary Bill of Rights J. 407, 436 (1995) (criticizing Atlas Roofng for failing to “provid[e] a principled basis upon which to determine the proper scope of congressional power to remove the civil jury from federal adjudications”); V. Amar, Implementing an His- torical Version of the Jury in an Age of Administrative Factfnding and Sentencing Guidelines, 47 S. Tex. L. Rev. 291, 298 (2005) (questioning Atlas Roofng for “invert[ing] and turn[ing] on its head the Apprendi doc- trine's central insight that juries are most important to check the power of the state” (emphasis deleted)); C. Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 604–605, and n. 189 (2007) (describing Atlas Roofng as “misus[ing]” precedent to “deny the novelty of its holding” and “drive a wedge” into the traditional understanding of the public-private rights distinction). We express no opinion on these various criticisms.
Opinion of the Court
whenever Congress assigns a matter to an agency for adjudi-
cation. See
Granfnanciera
,
For its part, the dissent also seems to suggest that Atlas Roofng establishes that the public rights exception applies whenever a statute increases governmental effciency. Post , at 180–181 (opinion of Sotomayor , J.). Again, our precedents foreclose this argument. As Stern explained, effects like in- creasing effciency and reducing public costs are not enough to trigger the exception. See 564 U. S., at 501; INS v. Chadha , 462 U. S. 919, 944 (1983). Otherwise, evading the Seventh Amendment would become nothing more than a game, where the Government need only identify some slight advantage to the public from agency adjudication to strip its target of the protections of the Seventh Amendment.
The novel claims in Atlas Roofng had never been brought in an Article III court. By contrast, law courts have dealt with fraud actions since before the founding, and Congress had authorized the SEC to bring such actions in Article III courts and still authorizes the SEC to do so today. See 3 Blackstone 41–42; §§ 77t, 78u, 80b–9. Given the judiciary's long history of handling fraud claims, it cannot be argued that the courts lack the capacity needed to adjudicate such actions.
In short,
Atlas Roofng
does not confict with our conclu-
sion. When a matter “from its nature, is the subject of a
suit at the common law,” Congress may not “withdraw [it]
from judicial cognizance.”
Murray's Lessee
,
* * *
A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. 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. Jarkesy and Patriot28 are entitled to a jury trial in an Arti- cle III court. We do not reach the remaining constitutional
Gorsuch, J. , concurring
issues and affrm the ruling of the Fifth Circuit on the Sev- enth Amendment ground alone.
The judgment of the Court of Appeals for the Fifth Circuit is affrmed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered. Justice Gorsuch , with whom Justice Thomas joins, concurring.
The Court decides a single issue: Whether the Securities and Exchange Commission's use of in-house hearings to seek civil penalties violates the Seventh Amendment right to a jury trial. It does. As the Court details, the government has historically litigated suits of this sort before juries, and the Seventh Amendment requires no less.
I write separately to highlight that other constitutional provisions reinforce the correctness of the Court's course. The Seventh Amendment's jury-trial right does not work alone. It operates together with Article III and the Due Process Clause of the Fifth Amendment to limit how the government may go about depriving an individual of life, lib- erty, or property. The Seventh Amendment guarantees the right to trial by jury. Article III entitles individuals to an independent judge who will preside over that trial. And due process promises any trial will be held in accord with time-honored principles. Taken together, all three provi- sions vindicate the Constitution's promise of a “fair trial in a fair tribunal.” In re Murchison , 349 U. S. 133, 136 (1955).
I
In March 2013, the SEC's Commissioners approved charges against Mr. Jarkesy. The charges were serious; the agency accused him of defrauding investors. The relief the agency sought was serious, too: millions of dollars in civil penalties. See SEC, Division of Enforcement's Post- Hearing Memorandum of Law in In re John Thomas Capital Management Group, LLC , Admin. Proc. File No. 3–15255, *35 142
Gorsuch, J. , concurring
pp. 28–29 (SEC, Apr. 7, 2014). For most of the SEC's 90-year existence, the Commission had to go to federal court to secure that kind of relief against someone like Mr. Jarkesy. Ante , at 117–118. Proceeding that way in this case hardly would have promised him an easy ride. But it would have at least guaranteed Mr. Jarkesy a jury, an independent judge, and traditional procedures designed to ensure that anyone caught up in our judicial system receives due process.
In 2010, however, all that changed. With the passage of the Dodd-Frank Act, Congress gave the SEC an alternative to court proceedings. Now, the agency could funnel cases like Mr. Jarkesy's through its own “adjudicatory” system. See 124 Stat. 1376, 1862–1865. That is the route the SEC chose when it fled charges against Mr. Jarkesy.
There is little mystery why. The new law gave the SEC's Commissioners—the same offcials who authorized the suit against Mr. Jarkesy—the power to preside over his case themselves and issue judgment. To be sure, the Commis- sioners opted, as they often do, to send Mr. Jarkesy's case in the frst instance to an “administrative law judge” (ALJ). See 17 CFR § 201.110 (2023). But the title “judge” in this context is not quite what it might seem. Yes, ALJs enjoy some measure of independence as a matter of regulation and statute from the lawyers who pursue charges on behalf of the agency. But they remain servants of the same master— the very agency tasked with prosecuting individuals like Mr. Jarkesy. This close relationship, as others have long recognized, can make it “extremely diffcult, if not impossi- ble, for th[e ALJ] to convey the image of being an impartial fact fnder.” B. Segal, The Administrative Law Judge, 62 A. B. A. J. 1424, 1426 (1976). And with a jury out of the picture, the ALJ decides not just the law but the facts as well.
[1] In many agencies, litigants are not even entitled to have ALJs, with their modicum of protections, decide their cases. These agencies use “administrative judges.” Some agencies can replace these administrative
Gorsuch, J. , concurring
Going in, then, the odds were stacked against Mr. Jarkesy. The numbers confrm as much: According to one report, dur- ing the period under study the SEC won about 90% of its contested in-house proceedings compared to 69% of its cases in court. D. Thornley & J. Blount, SEC In-House Tribunals: A Call for Reform, 62 Vill. L. Rev. 261, 286 (2017) (Thornley). Reportedly, too, one of the SEC's handful of ALJs even warned individuals during settlement discussions that he had found defendants liable in every contested case and never once “ `ruled against the agency's enforcement divi- sion.' ” Axon Enterprise, Inc. FTC , 598 U. S. 175, 213– 214 (2023) ( Gorsuch , J., concurring in judgment).
The shift from a court to an ALJ didn't just deprive Mr. Jarkesy of the right to an independent judge and a jury. He also lost many of the procedural protections our courts supply in cases where a person's life, liberty, or property is at stake. After an agency fles a civil complaint in court, a defendant may obtain from the SEC a large swathe of docu- ments relevant to the lawsuit. See Fed. Rule Civ. Proc. 26(b)(1). He may subpoena third parties for testimony and documents and take 10 oral depositions—more with the court's permission. Rule 45; Rule 30(a)(2)(A)(i). A court has fexibility, as well, to set deadlines for discovery and other matters to meet the needs of the case. See Rule 16. And come trial, the Federal Rules of Evidence apply, mean- ing that hearsay is generally inadmissible and witnesses must usually testify in person, subject to cross-examination. See Fed. Rule Evid. 802.
Things look very different in agency proceedings. The SEC has a responsibility to provide “documents that contain material exculpatory evidence.” 17 CFR § 201.230(b)(3). judges if they don't like their decisions. And some of these judges may move in and out of prosecutorial and adjudicatory roles, or move in and out of the very industries their agencies regulate. See United States v. Arthrex, Inc. , 594 U. S. 1, 36–37 (2021) ( Gorsuch , J., concurring in part and dissenting in part). v.
Gorsuch, J. , concurring
But the defendant enjoys no general right to discovery. Though ALJs enjoy the power to issue subpoenas on the re- quest of litigants like Mr. Jarkesy, § 201.232(a), they “often decline to issue [them] or choose to signifcantly narrow their scope,” G. Mark, SEC and CFTC Administrative Proceed- ings, 19 U. Pa. J. Const. L. 45, 68 (2016). Oral depositions are capped at fve, with another two if the ALJ grants permission. § 201.233(a). In some cases, an administrative trial must take place as soon as 1 month after service of the charges, and that hearing must follow within 10 months in even the most complex matters. § 201.360(a)(2)(ii). The rules of evidence, including their prohibition against hear- say, do not apply with the same rigor they do in court. § 201.235(a)(5); see § 201.230. For that reason, live testi- mony often gives way to “investigative testimony”—that is, a “sworn statement” taken outside the presence of the defendant or his counsel. § 201.235(b).
How did all this play out in Mr. Jarkesy's case? Accompa- nying its charges, the SEC disclosed 700 gigabytes of data— equivalent to between 15 and 25 million pages of informa- tion—it had collected during its investigation. App. to Pet. for Cert. 164a; Complaint in Jarkesy U. S. SEC , No. 1:14– cv–00114 (D DC, Jan. 29, 2014), ECF Doc. 1, ¶49, pp. 12–13. Over Mr. Jarkesy's protest that it would take “two lawyers or paralegals working twelve-hour days over four decades to review,” ibid. , the ALJ gave Mr. Jarkesy 10 months to pre- pare for his hearing, see App. to Pet. for Cert. 156a. Then, after conducting that hearing, the ALJ turned around and obtained from the Commission “an extension of six months to fle [her] initial decision.” In re John Thomas Capital Management Group LLC , SEC Release No. 9631, p. 1 (Aug. 13, 2014). The reason? The “ `size and complexity of the proceeding.' ” Id ., at 2. When that decision eventually ar- rived seven months after the hearing, the ALJ agreed with the SEC on every charge. See App. to Pet. for Cert. 155a– 156a, 212a.
Gorsuch, J. , concurring
Mr. Jarkesy had the right to appeal to the Commission,
but appeals to that politically accountable body (again, the
same body that approved the charges) tend to go about as
one might expect. The Commission may decline to review
the ALJ's decision. § 201.411(b)(2). If it chooses to hear
the case, it may
increase
the penalty imposed on the defend-
ant. Thornley 286. A defendant unhappy with the result
can seek further review in court, though that process will
take more time and money, too. Nor will he fnd a jury
there, only a judge who must follow the agency's fndings if
they are supported by “ `more than a mere scintilla' ” of evi-
dence.
Biestek Berryhill
,
Mr. Jarkesy fled an appeal anyway. The Commission agreed to review the ALJ's decision. It then afforded itself the better part of six years to issue an opinion. And, after all that, it largely agreed with the ALJ. See App. to Pet. for Cert. 71a–74a. None of this likely came as a surprise to the SEC employees in the Division of Enforcement responsi- ble for pressing the action against Mr. Jarkesy. While his appeal was pending, employees in that division—including an “ `Enforcement Supervisor' ” in the regional offce prose- cuting Mr. Jarkesy—accessed confdential memos by the Commissioners' advisors about his appeal. See SEC, Sec- ond Commission Statement Relating to Certain Administra- tive Adjudications 3 (June 2, 2023).
II A If administrative proceedings like Mr. Jarkesy's seem a thoroughly modern development, the British government and its agents engaged in a strikingly similar strategy in colonial America. Colonial administrators routinely steered enforcement actions out of local courts and into vice- admiralty tribunals where they thought they would win more often. These tribunals lacked juries. They lacked truly independent judges. And the procedures materially
Gorsuch, J. , concurring
differed from those available in everyday common-law courts.
The vice-admiralty courts in the Colonies began as rough equivalents of English courts of admiralty. E. Surrency, The Courts in the American Colonies, 11 Am. J. Legal Hist. 347, 355 (1967). These courts generally concerned them- selves with maritime matters arising on “the oceans and riv- ers and their immediate shores.” C. Ubbelohde, The Vice- Admiralty Courts and the American Revolution 19 (1960) (Ubbelohde). And the proceedings they used accorded more with civil law traditions than common law ones. Among other things, this meant offcials could try cases against colo- nists without a jury. Id. , at 21.
Confned to admiralty disputes, perhaps the lack of a jury would have proven unexceptional (as juries were not usually required in such cases then, nor are they today). See, e. g. , Lewis Lewis & Clark Marine, Inc. , 531 U. S. 438, 448 (2001). But Parliament deployed these juryless tribunals in the Colonies to new ends that, according to John Adams, could fll “ `volumes.' ” Ubbelohde vii. The creep away from the original province of those courts began with the grant of authority over violations of certain trade and cus- toms laws. But in the decade before the Revolution, the drip, drip, drip of expanding power became a torrent, as Par- liament allowed more and more actions to be brought in colo- nial vice-admiralty courts.
Many of the matters added to vice-admiralty jurisdiction in the Colonies would have required juries in England. Id ., at 112. But as the Massachusetts royal governor explained, colonial juries “ `were not to be trusted.' ” D. Lovejoy, Rights Imply Equality: The Case Against Admiralty Juris- diction in America, 1764–1776, 16 Wm. & Mary Q. 459, 468 (1959). Even violations that did not implicate the jury right normally would have been heard in England “before a court in [one's] own neighborhood or county where [one] could count on traditional common-law procedure.” Id. , at 471.
Gorsuch, J. , concurring
But by expanding the reach of vice-admiralty jurisdiction in the Colonies, Parliament denied similar protections to Americans. See Erlinger v. Uni ted States , 602 U. S. 821, 832 (2024).
Vice-admiralty court judges also lacked independence. While judges in England since the end of the 17th century generally enjoyed the protection of tenure during good be- havior, colonial judges usually served at the pleasure of the royal administration. See United States Will , 449 U. S. 200, 218–219 (1980). And, doing away with the pretense of impartiality entirely, some vice-admiralty judges held dual appointments—for instance, as colonial attorneys general and vice-admiralty judges. Ubbelohde 162–163.
Like the modern SEC, British colonial offcials were not required to bring many of their cases before the vice- admiralty courts. Often, Parliament gave those offcials the option to proceed in either the ordinary common-law courts or the vice-admiralty courts. Unsurprisingly, though, they sought to fle where they were most likely to win. And “[i]n this contest, the vice-admiralty courts were usually the vic- tors.” Id ., at 21.
B
The abuses of these courts featured prominently in the calls for revolution. In the First Continental Congress, the assembled delegates condemned how Parliament “extend[ed] the jurisdiction of Courts of Admiralty,” complained how co- lonial judges were “dependent on the Crown,” and demanded the right to the “common law of England” and the “great and inestimable privilege” of a jury trial. Declaration and Resolves of the First Continental Congress, Oct. 14, 1774, in 1 Journals of the Continental Congress, 1774–1789, pp. 68– 69 (W. Ford 1904 ed.). Two years later, the drafters of the Declaration of Independence repeated these concerns, ad- monishing the King for “ma[king] Judges dependent on his Will alone,” ¶11, and “[f]or depriving [the colonists] in many cases, of the benefts of Trial by Jury,” ¶20. By that point,
Gorsuch, J. , concurring
however, the “musket fre at Lexington and Concord . . . signaled the end not only of the vice-admiralty courts, but of all British rule in America.” Ubbelohde 190.
When the smoke settled, the American people went to
great lengths to prevent a backslide toward anything like
the vice-admiralty courts.
Erlinger
,
Despite these guarantees, many at the founding thought Article III didn't go far enough. Yes, it promised a defend- ant an independent judge rather than one dependent on those who hold political power. But what would stop Con- gress from requiring litigants to navigate vice-admiralty's alien procedures in all federal cases? Or from making “fed- eral processes” even more byzantine, so “as to [effectively] destroy [individual] rights?” Letter from a Federal Farmer (Jan. 20, 1788), in 2 The Complete Anti-Federalist 328 (H. Storing ed. 1981).
And what about civil juries? “[T]he jury trial,” one prom- inent Anti-Federalist observed, “brings with it an open and public discussion of all causes, and excludes secret and arbi- trary proceedings.” Letter from a Federal Farmer (Jan. 18,
Gorsuch, J. , concurring
1788), in id ., at 320 (Federal Farmer 15). The participation of ordinary Americans “drawn from the body of the people” serves another function, too: “If the conduct of judges shall . . . tend to subvert the laws, and change the forms of govern- ment, the jury may check them.” Ibid. As originally com- posed, however, the Constitution promised a trial by jury for “all Crimes,” but said nothing about civil cases. Art III, § 2, cl. 3. Some wondered, did this mean judges, not juries, would be “left masters as to facts” in civil disputes? Fed- eral Farmer 15, at 322. If so, asked another, “what satisfac- tion can we expect from a lordly court of justice, always ready to protect the offcers of government against the weak and helpless citizen”? Essay of a Democratic Federalist (Oct. 17, 1787), in 3 Complete Anti-Federalist 61.
The answer to these concerns was the Bill of Rights. Er- linger , 602 U. S., at 830. As the Court details, the Seventh Amendment promised the right to a jury trial in “ `[s]uits at common law.' ” Ante , at 122 (quoting Amdt. 7). But be- cause the Constitution was designed to “endure for ages to come,” McCulloch v. Maryland , 4 Wheat. 316, 415 (1819), this did not mean only those “suits, which the common law recognized among its old and settled proceedings,” Parsons Bedford , 3 Pet. 433, 447 (1830). The founding generation anticipated the possibility Congress would introduce new causes of action and perhaps new remedies, too. See ibid. Accordingly, this Court has long understood the Seventh Amendment's protections to apply in “all [civil] suits which are not of equity [or] admiralty jurisdiction.” Ibid. ; accord, ante , at 122. In this way, the Seventh Amendment seeks to ensure there will be no juryless vice-admiralty courts in the United States.
The Fifth Amendment's Due Process Clause addressed re- maining concerns about the processes that would attend trials before independent judges and juries. It provided that the government may not deprive anyone of “life, liberty, or property, without due process of law.” As originally un- v.
Gorsuch, J. , concurring
derstood, this provision prohibited the government from “de-
priv[ing] a person of those rights without affording him the
beneft of (at least) those customary procedures to which
freemen were entitled by the old law of England.”
Sessions
Dimaya
,
More than that, because it was “the peculiar province of the judiciary” to safeguard life, liberty, and property, due process often meant judicial process. 1 St. George Tucker, Blackstone's Commentaries, Editor's App. 358 (1803). That is, if the government sought to interfere with those rights, nothing less than “the process and proceedings of the com- mon law” had to be observed before any such deprivation could take place. 3 J. Story, Commentaries on the Constitu- tion of the United States § 1783, p. 661 (1833) (Story). In other words, “ `due process of law' generally implie[d] and include[d] . . . judex [a judge], regular allegations, opportu- nity to answer, and a trial according to some settled course of judicial proceedings.” Murray's Lessee , 18 How., at 280. This constitutional baseline was designed to serve as “a re- straint on the legislative” branch, preventing Congress from “mak[ing] any process `due process of law,' by its mere will.” Id. , at 276.
C
These three constitutional provisions were meant to work together, and together they make quick work of this case. In fact, each provision requires the result the Court reaches today.
First , because the “matter” before us is one “which, from its nature, is the subject of a suit at the common law,” id. , at 284, “the responsibility for deciding [it] rests with Article III judges in Article III courts,” Stern Marshall , 564 U. S. 462, 484 (2011). Nor does it make a difference whether we think of the SEC's action here as a civil-penalties suit or
Gorsuch, J. , concurring
something akin to a traditional fraud claim: At the found-
ing, both kinds of actions were tried in common-law courts.
See
ante
, at 122–125 (discussing civil penalties); see also,
e
.
g
.,
Pasley
v.
Freeman
, 3 T. R. 51, 100 Eng. Rep. 450 (K. B. 1789)
(action for fraud);
Baily Merrell
, 3 Bulst. 94, 81 Eng. Rep.
81 (K. B. 1615) (same). And that tells us all we need to
know that the SEC's in-house civil-penalty scheme violates
Article III by “withdraw[ing]” the matter “from judicial cog-
nizance” and handing it over to the Executive Branch for an
in-house trial.
Murray's Lessee
,
Second , because the action the SEC seeks to pursue is not the stuff of equity or admiralty jurisdiction but the sort of suit historically adjudicated before common-law courts, the Seventh Amendment guarantees Mr. Jarkesy the right to have his case decided by a jury of his peers. In this regard, it is irrelevant that the SEC derived its power to sue under a “new statut[e]” or that the agency proceeded under “a new cause of action.” Brief for Petitioner 13, 22 (internal quota- tion marks omitted). As we have seen, the government can- not evade the Seventh Amendment so easily. See ante , at 122; supra , at 148–149.
Third , were there any doubt, the Due Process Clause con- frms these conclusions. Cf. Murray's Lessee , 18 How., at 275 (explaining that the Article III challenge before the Court could “best be considered” as raising a due process question). Because the penalty the SEC seeks would “de- priv[e]” Mr. Jarkesy of “property,” Amdt. 5, due process de- mands nothing less than “the process and proceedings of the common law,” 3 Story § 1783, at 661. That means the regu- lar course of trial proceedings with their usual protections, see Murray's Lessee , 18 How., at 280, not the use of ad hoc adjudication procedures before the same agency responsible for prosecuting the law, subject only to hands-off judicial re- view, see supra , at 149–150.
Gorsuch, J. , concurring III A The government resists these conclusions. As the gov- ernment sees it, this case implicates the so-called public rights exception. One that defeats not only Mr. Jarkesy's right to trial by jury, but also his right to proceed before an independent trial judge consistent with traditional judicial processes. That is, on the government's account, not only does the Seventh Amendment fall away; so does the usual operation of Article III and the Due Process Clause.
In the government's view, the public rights exception “ at a minimum allows Congress to create new statutory obliga- tions, impose civil penalties for their violation, and then com- mit to an administrative agency the function of deciding whether a violation has in fact occurred.” Brief for Peti- tioner 21 (emphasis added; internal quotation marks omit- ted). Put plainly, all that need be done to dispense almost entirely with three separate constitutional provisions is an Act of Congress creating some new statutory obligation. And, the government continues, this case easily meets that standard because the proceeding against Mr. Jarkesy is one “brought by the government against a private party” under a statute designed “to remedy harm to the public at large.” Id ., at 24 (internal quotation marks omitted).
The Court rightly rejects these arguments. See ante , at 134–136. No one denies that, under the public rights excep- tion, Congress may allow the Executive Branch to resolve certain matters free from judicial involvement in the frst instance. Ante , at 120, 127. But, despite its misleading name, the exception does not refer to all matters brought by the government against an individual to remedy public harms, or even all those that spring from a statute. See ante , at 131, 135–136. Instead, public rights are a narrow class defned and limited by history. As the Court explains, that class has traditionally included the collection of revenue, cus-
Gorsuch, J. , concurring
toms enforcement, immigration, and the grant of public bene- fts. Ante , at 128–130.
How did these matters fnd themselves categorized as pub-
lic rights? Competing explanations abound. Some have
pointed to ancient practical considerations. In
Murray's
Lessee
, for example, the Court reasoned that the “[i]mpera-
tive necessity” of tax collection for a functional state had
long caused governments to treat “claims for public taxes”
differently from “all others.”
Whatever their roots, traditionally recognized public
rights have at least one feature in common: a serious and un-
broken historical pedigree. See
Culley Marshall
, 601 U. S.
377, 397–398 (2024) ( Gorsuch , J., concurring);
ante
, at 127–
130. For good reason. If the Article III “judicial Power”
encompasses “the stuff of the traditional actions at common
law tried by the courts at Westminster in 1789,”
ante
, at 128
(internal quotation marks omitted), it follows that matters
traditionally adjudicated outside those courts might
not
fall
within Article III's ambit. See
Stern
,
Gorsuch, J. , concurring
practice as the ordinary procedural baseline, see Part II–B, supra , clear historical evidence of a different practice might warrant a departure from that baseline, see Murray's Les- see , 18 How., at 280. That's why this Court has said “ `a process of law . . . must be taken to be due process of law' if it enjoys `the sanction of settled usage both in England and in this country.' ” Culley , 601 U. S., at 397 ( Gorsuch , J., concurring) (quoting Hurtado California , 110 U. S. 516, 528 (1884)).
With the public rights exception viewed in this light, the government's invocation of it in this case cannot succeed. Starting with a “ `presumption . . . in favor of Article III courts' ” and their usual attendant processes, ante , at 132, we look for some “deeply rooted” tradition of nonjudicial adjudi- cation before permitting a case to be tried in a different forum under different procedures, Culley , 601 U. S., at 397 ( Gorsuch , J., concurring). We have upheld summary proce- dures for customs collection, for example, because they were consistent with both “the common and statute law of Eng-
land prior to the emigration of our ancestors” and “the laws
of many of the States at the time of the adoption of ” the
Constitution.
Murray's Lessee
,
B
If all that's so, why might the government feel comfortable invoking the public rights exception? To be fair, much of it may have to do with this Court. Some of our past decisions have allowed the government to chip away at the courts' historically exclusive role in adjudicating private rights—
Gorsuch, J. , concurring
and juries' accompanying role in that adjudication. This process began, of all places, in an admiralty case.
In
Crowell Benson
,
To get there took a dash of fction and a pinch of surmise. From time to time, the Court observed, judges appoint their own special “masters and commissioners” to prepare reports on fact issues or damages. Id ., at 51. These reports are nonbinding and “essentially . . . advisory.” Ibid . Judges themselves remain the decisionmakers. In Crowell , the Court embraced the fction that Executive Branch offcials might similarly act as assistants or adjuncts to Article III courts. And because judges often adopt the proposed fnd- ings of their masters and commissioners, the Court surmised, Article III posed no bar to Congress taking a further step and requiring judges to treat the fndings of Executive Branch offcials as essentially “fnal.” Id ., at 46. “To hold otherwise,” the Court reasoned, “would be to defeat the ob- vious purpose of the legislation”: “to furnish a prompt, con-
Gorsuch, J. , concurring
tinuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to exam- ination and determination by an administrative agency spe- cially assigned to that task.” Ibid .
Crowell
itself only went so far, however. The case fell
within federal courts' admiralty jurisdiction, and tribunals
sitting in admiralty in England and America alike had long
heard certain matters falling within the public rights excep-
tion. See
Culley
,
Soon, though, none of that mattered. Almost in a blink, the admiralty limitation was discarded, and more and more agencies began assuming adjudicatory functions previously reserved for judges and juries, employing novel procedures that sometimes bore faint resemblance to those observed in court. Along the way, prominent voices in and out of gov- ernment expressed concern at this development. Consider just two typical examples. Were an agency endowed with the power to assess civil penalties, advised a committee over- seen by Attorney General (soon-to-be Justice) Robert H. Jackson, “the aggrieved person” should at least “be permit- ted review de novo by a Federal district court.” Final Re- port of Attorney General's Committee on Administrative Procedure 147 (1941). That was the only way, the commit- tee opined, “to resolve any doubts concerning the constitu- tionality of the procedure.” Ibid. Around the same time, a committee of the American Bar Association led by Roscoe Pound sounded a similar alarm. Administrative agencies, the committee warned, had a “tendency to mix up rule mak- ing, investigation, prosecution, the advocate's function, the judge's function, and the function of enforcing the judgment, so that the whole proceeding from end to end is one to give effect to a complaint.” Report of the Special Committee on Administrative Law, 63 Ann. Rep. 331, 351 (1938).
Gorsuch, J. , concurring
The high-water mark of the movement toward agency ad- judication may have come in 1977 in Atlas Roofng Co. v. Occupational Safety and Health Review Comm'n , 430 U. S. 442. Some have read that decision to suggest the category of public rights might encompass pretty much any case aris- ing under any “ `new statutory obligations,' ” Brief for Peti- tioner 22 (quoting Atlas Roofng , 430 U. S., at 450). It is a view the government essentially espouses in this case. But without reference to any constitutional text or history to guide what does or does not qualify as a public right, that view has (unsurprisingly) proven wholly unworkable.
It did not take long for this Court to realize as much.
Just 12 years later, in
Granfnanciera, S. A. Nordberg
, 492
U. S. 33 (1989), this Court cabined
Atlas Roofng
so narrowly
that the author of
Atlas Roofng
complained that the Court
had “overrul[ed]” it.
Yet, even after the Court moved away from Atlas Roofng , our public rights jurisprudence remained muddled. Since then, the Court has suggested that public rights might in- clude those “involving statutory rights that are integral parts of a public regulatory scheme.” Granfnanciera , 492 U. S., at 55, n. 10. We have changed course and tried our hand at a fve-factor balancing test. See Stern , 564 U. S., at 491 (describing Commodity Futures Trading Comm'n v. Schor , 478 U. S. 833 (1986)). We have replaced that test v.
Gorsuch, J. , concurring
with one that considers “at least seven different” factors.
Today, the Court does much to return us to a more tradi- tional understanding of public rights. Adhering to Granf- nanciera , the Court rejects the government's overbroad reading of Atlas Roofng and recognizes that the kind of atextual and ahistorical (not to mention confusing) tests it inspired do little more than ask policy questions the Consti- tution settled long ago. Yes, a limited category of public rights were originally and even long before understood to be susceptible to resolution without a court, jury, or the other usual protections an Article III court affords. But outside of those limited areas, we have no license to deprive the American people of their constitutional right to an independ- ent judge, to a jury of their peers, or to the procedural protections at trial that due process normally demands. Let alone do so whenever the government wishes to dispense with them.
This Court does not subject other constitutional rights
to such shabby treatment. We have “reaffrm[ed],” many
times and “emphatically[,] that the First Amendment does
not permit the State to sacrifce speech for effciency.”
Riley
v.
National Federation of Blind of N. C., Inc.
, 487 U. S.
781, 795 (1988). We have rejected a framework for Second
Amendment challenges that would balance the right to bear
arms against “ `other important governmental interests.' ”
District of Columbia Heller
,
Gorsuch, J. , concurring
justify a warrantless search.”
Georgia
v.
Randolph
, 547
U. S. 103, 115, n. 5 (2006). And even though the Sixth
Amendment's guarantee of a jury trial in criminal cases may
have “ `its weaknesses and the potential for misuse,' ”
Dun-
can
v.
Louisiana
, 391 U. S. 145, 156 (1968), we continue to
insist that it “be jealously preserved,”
Patton
v.
United
States
, 281 U. S. 276, 312 (1930); see
Ramos Louisiana
,
Why should Article III, the Seventh Amendment, or the Fifth Amendment's promise of due process be any different? None of them exists to “protec[t] judicial authority for its own sake.” Oil States , 584 U. S., at 356 ( Gorsuch , J., dis- senting). They exist to “protect the individual.” Bond v. United States , 564 U. S. 211, 222 (2011). And their protec- tions are no less vital than those afforded by other constitu- tional provisions. As American colonists learned under British rule, “the right of trial” means little “when the actual administration of justice is dependent upon caprice, or fa- vour, [or] the will of rulers.” 3 Story § 1568, at 426; id ., § 1783, at 661. In recognizing as much today, the Court es- sentially follows the advice of Justices Brennan and Mar- shall, “limit[ing] the judicial authority of non-Article III fed- eral tribunals to th[o]se few, long-established exceptions” that bear the sanction of history, and “countenanc[ing] no further erosion. ” Schor , 478 U. S., at 859 (Brennan, J., joined by Marshall, J., dissenting).
C
The dissent's competing account of public rights is aston- ishing. On its telling, the Constitution might impose some (undescribed) limits on the power of the government to send cases “involving the liability of one individual to another” to executive tribunals for resolution. Post , at 187 (opinion of Sotomayor , J.). But, thanks to public rights doctrine, the v.
Gorsuch, J. , concurring
dissent insists, the Constitution imposes no limits on the gov- ernment's power to seek civil penalties “outside the regular courts of law where there are no juries.” Post , at 168. In that feld, the Constitution falls silent. The dissent does not even attempt to deploy any of the contrived balancing tests that emerged in Atlas Roofng 's aftermath to rein in the government's power. But where in Article III, the Seventh Amendment, and due process can the dissent fnd this new rule? What about founding-era practice or original mean- ing? And why would a Constitution drawn up to protect against arbitrary government action make it easier for the government than for private parties to escape its dictates? The dissent offers no answers.
To be sure, the dissent tries to appeal to precedent. It even asserts that our decisions support, “ without exception ,” its sweeping conception of public rights doctrine. Post , at 178 (emphasis added). But the dissent's approach to our precedents is like a picky child at the dinner table. It se- lects only a small handful while leaving much else untouched. To start, the dissent lingers briefy on Murray's Lessee —but not long enough to explain the opinion's conception of Article III, due process, or the extended historical inquiry that led the Court to conclude the collection of revenue concerned a public right. See post , at 175–176; supra , at 148, 150–154.
The 19th century behind it (for it does not trouble with
the founding era), the dissent turns to
Oceanic Steam Nav.
Co. Stranahan
,
Gorsuch, J. , concurring
what links immigration to other public rights like “tariff[s], . . . internal revenue, taxation,” and “foreign commerce” is that, “ `from the beginning[,] Congress has exercised a ple- nary power' ” over them “because they all relate to subjects peculiarly within the authority of the legislative depart- ment.” Id. , at 334, 339.
Really, one has to wonder: If the public rights exception is as broad and unqualifed as the dissent asserts, why did our predecessors bother to discuss history or Congress's peculiar powers when it comes to revenue and immigration? Why didn't the Court simply announce the rule the dissent would have us announce today: that our Constitution does not stand in the way of “agency adjudications of statutory claims . . . brought by the Government in its sovereign capacity”? Post , at 170. The answer, of course, is that the Constitution has never countenanced the dissent's notion that the Execu- tive is free to reassign virtually any civil case in which it is a party to its own tribunals where its own employees decide cases and inconvenient juries and traditional trial procedures go by the boards.
That my dissenting colleagues plow ahead anyway with
their remarkable conception of public rights is all the more
puzzling considering how regularly they have argued
against
that sort of sweeping concentration of governmental power.
The dissenters have recognized that a “lack of standardized
procedural safeguards” can leave government enforcement
schemes “vulnerable to abuse” and individuals subject to coer-
cive “pressure from unchecked prosecutors.”
Culley
, 601
U. S., at 405, 407 ( Sotomayor , J., joined by Kagan and Jack-
son , JJ., dissenting). They have contended that the Judiciary
has an affrmative obligation to supply “meaningful remedies,”
trials before judges and juries included, even when “Congress
or the Executive has [already] created a remedial process.”
Egbert Boule
,
Gorsuch, J. , concurring
emphasis deleted). And like most every current Member of this Court at one time or another, they have acknowledged that the jury-trial right “stands as one of the Constitution's- most vital protections against arbitrary government.” United States v. Haymond , 588 U. S. 634, 637 (2019) (plurality opinion).
The dissent's conception of public rights is so unqualifed that it refuses to commit itself on the question whether even muted forms of judicial review—such as asking executive tri- bunals to muster “more than a mere scintilla” of evidence in support of their rulings—are constitutionally required in the essentially unbounded class of cases that fall within its con- ception of public rights. See Part I, supra ; post , at 174, n. 4. Gone, too, is any role for the jury—for why would the gov- ernment ever go to court if it may more readily secure a win before its own employees? The only attempt to mitigate the havoc its rule would wreak comes when the dissent declares that “ `the public-rights doctrine does not extend to . . . crimi- nal matters.' ” Post , at 193, n. 9. But the dissent does not (and cannot) explain how that fts with all else it says. If, as the dissent insists, a public right is any “new right” that “belongs to the public and inheres in the Government in its sovereign capacity,” post , at 194, what could possibly better ft the description than the enforcement of new criminal laws? See Shinn Martinez Ramirez , 596 U. S. 366, 376 (2022) (“The power to convict and punish criminals lies at the heart of the States' residuary and inviolable sovereignty” (internal quotation marks omitted)).
[2] The best the dissent can do is to observe that “Article III itself pre- scribes that `[t]he trial of all Crimes . . . shall be by Jury.' ” Post , at 193, n. 9 (quoting § 2, cl. 3). That response might be reassuring if the dissent's treatment of the Seventh Amendment didn't supply a roadmap for work- ing around it. On the dissent's telling, the Seventh Amendment can be dispensed with at will: It applies “only in judicial proceedings,” and not whenever the government chooses to assign a matter to its own in-house tribunals. Post , at 171. And under that logic, there is no apparent rea- son why the government could not evade Article III's jury-trial right just as
Gorsuch, J. , concurring
All but admitting its view has no support in “historical practice dating back to the founding,” the dissent chastises the Court for daring to rely on that practice to fesh out the scope of the public rights exception. Post , at 184. It would be so much simpler, the dissent says, to adopt its rule permit- ting the government to skirt oversight by judge and jury alike whenever it enacts a new law. And, true enough, “a principle that the government always wins surely would be simple for judges to implement.” United States Rahimi , 602 U. S. 680, 712 (2024) ( Gorsuch , J., concurring). But looking to original meaning and historical practice informing it is exactly how this Court proceeds in so many other con- texts where we seek to honor the Constitution's demands— including, notably, when we seek to ascertain the scope of the criminal jury-trial right and the defendant's attendant right to confront his accusers. See Erlinger , 602 U. S., at 829–832; Crawford Washington , 541 U. S. 36, 50 (2004). What's more, this approach has the virtue of “keep[ing] judges in their proper lane” by “seeking to honor the supreme law the people have ordained rather than substi- tuting our will for theirs. ” Rahimi , 602 U. S., at 711 ( Gorsuch , J., concurring); see Crawford , 541 U. S., at 67.
It is hard, as well, to take seriously the dissent's charges of unworkability and unpredictability. At least until today, the dissenters supported procedural protections for those in the government's sights in civil as well as criminal cases. What kind of protections? Often, they have argued, it de- pends on a judicial balancing test. One that is “fexible,” defes “technical conception,” lacks “fxed content,” and will “not always yield the same result” even when applied in sim- ilar circumstances. Culley , 601 U. S., at 413 (opinion of So- tomayor , J.) (internal quotation marks omitted). As we have seen, that was essentially the course some pursued, too, easily, simply by choosing to route criminal prosecutions through execu- tive agencies. v.
Gorsuch, J. , concurring
when it came to the public rights exception in the fallout from Atlas Roofng . See Part III–B, supra . But that kind of “ `we know it when we see it' ” approach to constitutional rights, post , at 187, can hardly claim any serious advantages when it comes to workability or predictability.
Failing all else, the dissent retreats to
Atlas Roofng
. At
least that decision, it insists, supports its nearly boundless
conception of public rights. The dissent goes so far as to
accuse the Court of undermining “
stare decisis
and the rule
of law,”
post
, at 180, and engaging in “a power grab,”
post
,
at 202, by failing to give
Atlas Roofng
its broadest possible
construction. It's a “disconcerting” accusation indeed,
post
,
at 201, and a misdirected one at that. Construed as broadly
as the dissent proposes,
Atlas Roofng
's view of public rights
stands as an outlier in our jurisprudence—with no apparent
support in original meaning, at odds with prior precedent,
and inconsistent with later precedent as well. See
ante
, at
138, n. 4; Part III–B,
supra
. Meanwhile, the Court's alter-
native construction of
Altas Roofng
fts far more comfort-
ably with all those legal sources. In that respect, the major-
ity's approach is of a piece with
Granfnanciera
's similar
approach 35 years ago. And, more broadly, it is of a piece
with our usual practice of construing “loose language” found
in a prior judicial opinion in a way that better conforms it to
the mainstream of our precedents.
Groff
v.
DeJoy
, 600 U. S.
447, 474 (2023) ( Sotomayor , J., concurring). As the dissent-
ers have previously acknowledged, that course is neither un-
usual nor at odds with
stare decisis
. See
id
., at 474–475; see
also
Brown Davenport
,
Were there any doubt about the propriety of the Court's treatment of Atlas Roofng , consider one more feature of the
Gorsuch, J. , concurring
alternative the dissent proposes. In defending the broadest possible construction of Atlas Roofng 's public rights discus- sion, the dissent necessarily endorses that decision's excep- tionally narrow conception of the Seventh Amendment. See post , at 171–172. After all, as public rights expand, so too the jury-trial right must contract. Yet Atlas Roofng 's dis- cussion of the jury-trial right, no less than its discussion of public rights, is diffcult to square with precedent and origi- nal meaning.
Recall that, from the start, the Seventh Amendment was
understood to protect that right “not merely” in suits recog-
nized at common law, but in “
all
suits which are” of legal, as
opposed to “equity [or] admiralty[,] jurisdiction.”
Parsons
,
Atlas Roofng ignored all of that. Instead, it suggested, “[t]he phrase `Suits at common law' has been construed to refer to cases tried prior to the adoption of the Seventh Amendment in courts of law.” 430 U. S., at 449 (emphasis added). That cramped construction of the Seventh Amend- ment was, of course, a key move in Atlas Roofng . For without it, the Court would have been hard pressed to sug- gest the public rights doctrine permits Congress to route v.
Gorsuch, J. , concurring
any “ `new cause of action' ” for adjudication before agencies
where juries do not sit.
Post
, at 179 (quoting
Atlas Roofng
,
Almost immediately, however, the Court rejected
Atlas
Roofng
's analysis, not just with respect to public rights doc-
trine but the Seventh Amendment, too. Returning to our
mainstream precedents, the Court reaffrmed the applicabil-
ity of the Seventh Amendment to new causes of action, frst
in
Tull
v.
United States
,
Today, the Court respects and follows this longstanding message in our Seventh Amendment precedents. The dis- sent chooses another path entirely—adopting a reading of Atlas Roofng that leads not only to an implausibly broad construction of public rights, but to an implausibly narrow understanding of the jury-trial guarantee as well. One 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.” Post , at 202. All of which, at bottom, amounts to little more than a complaint with the Constitution's revolutionary promise of popular oversight of government offcials—and with those judges who would honor that promise.
*
People like Mr. Jarkesy may be unpopular. Perhaps even rightly so: The acts he allegedly committed may warrant serious sanctions. But that should not obscure what is at
Sotomayor, J. , dissenting
stake in his case or others like it. While incursions on old
rights may begin in cases against the unpopular, they rarely
end there. The authority the government seeks (and the
dissent would award) in this case—to penalize citizens with-
out a jury, without an independent judge, and under proce-
dures foreign to our courts—certainly contains no such lim-
its. That is why the Constitution built “high walls and clear
distinctions” to safeguard individual liberty.
Plaut
v.
Spendthrift Farm, Inc.
,
Justice Jackson join, dissenting.
Throughout our Nation's history, Congress has authorized agency adjudicators to fnd violations of statutory obligations and award civil penalties to the Government as an injured sovereign. The Constitution, this Court has said, does not require these civil-penalty claims belonging to the Govern- ment to be tried before a jury in federal district court. Con- gress can instead assign them to an agency for initial adjudi- cation subject to judicial review. This Court has blessed that practice repeatedly, declaring it “the `settled judicial construction' ” all along; indeed, “ `from the beginning.' ” Atlas Roofng Co. Occupational Safety and Health Review Comm'n , 430 U. S. 442, 460 (1977). Unsurprisingly, Con- gress has taken this Court's word at face value. It has enacted more than 200 statutes authorizing dozens of agen-
Sotomayor, J. , dissenting
cies to impose civil penalties for violations of statutory obli- gations. Congress had no reason to anticipate the chaos to- day's majority would unleash after all these years.
Today, for the very frst time, this Court holds that Con- gress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the Government in its sovereign capacity, also known as a public right. According to the majority, the Constitution requires the Government to seek civil penalties for federal-securities fraud before a jury in federal court. The nature of the rem- edy is, in the majority's view, virtually dispositive. That is plainly wrong. This Court has held, without exception, that Congress has broad latitude to create statutory obligations that entitle the Government to civil penalties, and then to assign their enforcement outside the regular courts of law where there are no juries.
Beyond the majority's legal errors, its ruling reveals a far more fundamental problem: this Court's repeated failure to appreciate that its decisions can threaten the separation of powers. Here, that threat comes from the Court's mistaken conclusion that Congress cannot assign a certain public- rights matter for initial adjudication to the Executive be- cause it must come only to the Judiciary.
The majority today upends longstanding precedent and the established practice of its coequal partners in our tripar- tite system of Government. Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.
I
The story of this case is straightforward. The Securities and Exchange Commission (SEC or Commission) investi- gated respondents George Jarkesy and his advisory frm Patriot28, LLC, for alleged violations of federal-securities laws in connection with the launch of two hedge funds.
In deciding how and where to enforce these laws, the SEC could have fled suit in federal court or adjudicated the mat-
Sotomayor, J. , dissenting
ter in an administrative enforcement action subject to judi- cial review. See 15 U. S. C. §§ 77h–1, 77t, 78u, 78u–2, 78u–3, 80b–3, 80b–9. The SEC opted for the latter. In 2013, the SEC initiated an administrative enforcement action against respondents, alleging violations of the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940. Specifcally, the SEC alleged that re- spondents falsely told brokers and investors that: (1) a prom- inent accounting frm would audit the hedge funds; (2) a prominent investment bank would serve as the funds' prime broker; and (3) one of the funds would invest 50% of its capi- tal in certain life-insurance policies. In reality, the audit never took place, the bank never opened a prime brokerage account, and the hedge fund invested less than 20% of its capital in the life-insurance policies. In addition to misrep- resenting the funds' investment strategies, respondents al- legedly overvalued the funds' holdings to charge higher man- agement fees. The SEC assigned the action to one of its administrative law judges, who held an evidentiary hearing and issued a
lengthy initial decision, concluding that respondents in fact had violated the three securities laws. The full Commission reviewed the initial decision and reached the same determi- nation. The Commission also denied respondents' constitu- tional challenges to the order, including that the agency's in-house adjudication violated respondents' Seventh Amend- ment right to a jury trial in federal court. Ultimately, the SEC ordered respondents to pay a civil penalty of $300,000 and to cease and desist from violating the federal-securities laws. It also barred Jarkesy from doing certain things in the securities industry and ordered Patriot28 to disgorge $685,000 in illicit profts.
Respondents fled a petition for review in the Fifth Circuit.
Sotomayor, J. , dissenting
because the federal-securities antifraud provisions were sim- ilar to common-law fraud claims to which the jury-trial right would attach. See id. , at 451–459. Because the SEC forced respondents to proceed within the agency, the Court of Appeals held that the SEC violated respondents' Seventh Amendment rights and thus vacated the SEC's order. Id. , at 465–466.
The majority affrms the Fifth Circuit's decision, notwith- standing the mountain of precedent against it. A faithful application of our precedent would have led, inexorably, to upholding the statutory scheme that Congress enacted for the SEC's in-house adjudication of federal-securities claims.
II
The majority did not need to break any new ground to resolve respondents' Seventh Amendment challenge. This Court's longstanding precedent and established government practice uniformly support the constitutionality of adminis- trative schemes like the SEC's: agency adjudications of stat- utory claims for civil penalties brought by the Government in its sovereign capacity. See Part II–B ( infra , at 173–180). In assessing the constitutionality of such adjudications, the political branches' “ `[l]ong settled and established practice,' ” which this Court has upheld and reaffrmed time and again, is entitled to “ `great weight.' ” Chiafalo Washington , 591 U. S. 578, 592–593 (2020) (quoting The Pocket Veto Case , 279 U. S. 655, 689 (1929)); accord, Vidal Elster , 602 U. S. 286, 323 (2024) ( Barrett , J., concurring in part); id ., at 330 ( So- [1] As the majority notes, respondents also prevailed on two other consti- tutional challenges in the Court of Appeals. See ante, at 120. The di- vided panel concluded that: (1) the SEC's discretion to bring the case within the agency instead of federal court violated the nondelegation doc- trine; and (2) a for-cause restriction on the Administrative Law Judge's removal violated Article II and the separation of powers. 34 F. 4th, at 459–465. I disagree with the ruling below on both points. Because the majority does not reach these issues, though, I address only the Seventh Amendment challenge discussed in the majority's opinion.
Sotomayor, J. , dissenting
tomayor , J., concurring in judgment); Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd. , 601 U. S. 416, 442 (2024) ( Kagan , J., concurring).
A
There are two key constitutional provisions at issue here. One is the Seventh Amendment, which “preserve[s]” the “right of trial by jury” in “Suits at common law, where the value in controversy shall exceed twenty dollars.” The other is Article III's Vesting Clause, which provides that the “judicial Power of the United States . . . shall be vested” in federal Article III courts. This case presents the familiar interplay between these two provisions.
Although this case involves a Seventh Amendment chal- lenge, the principal question at issue is one rooted in Article III and the separation of powers. That is because, as the majority rightly acknowledges, the Seventh Amendment's jury-trial right “applies” only in “an Article III court.” Ante, at 120–121. That conclusion follows from both the
text of the Constitution and this Court's precedents.
As to the text, the Amendment is limited to “Suits at com-
mon law.” That means two things. First, that the right
applies only in judicial proceedings. The term “suit,” after
all, refers to “the prosecution of some demand in a Court of
justice,”
Cohens
v.
Virginia
, 6 Wheat. 264, 407 (1821) (Mar-
shall, C. J.), or a “proceeding in a court of justice,”
Weston
v.
City Council of Charleston
, 2 Pet. 449, 464 (1829) (same)
(“The modes of proceeding may be various, but if a right is
litigated between parties in a court of justice, the proceeding
by which the decision of the court is sought, is a suit”). Con-
sistent with that understanding, this Court has held repeat-
edly that “the Seventh Amendment is not applicable to ad-
ministrative proceedings.”
Tull United States
, 481 U. S.
412, 418, n. 4 (1987); accord,
Atlas Roofng
,
Sotomayor, J. , dissenting
trative adjudication,” which empowers executive offcials to fnd the relevant facts and apply the law to those facts like juries do in a courtroom. Pernell v. Southall Realty , 416 U. S. 363, 383 (1974) (collecting cases).
Second, the requirement that the “ `[s]ui[t]' ” must be one
“ `at common law' ” means that the claim at issue must be
“ `legal in nature.' ”
Ante,
at 122. So, whether a defendant
is entitled to a jury under the Seventh Amendment depends
on both the forum and the cause of action. If the claim is in
an Article III proceeding, then the right to a jury attaches if
the claim is “legal in nature” and the amount in controversy
exceeds $20.
Granfnanciera, S. A.
v.
Nordberg
, 492 U. S.
33, 53 (1989);
Atlas Roofng
,
The conclusion that Congress properly assigned a matter to an agency for adjudication therefore necessarily “resolves [any] Seventh Amendment challenge.” Oil States , 584 U. S., [2] Since the founding, Executive Branch offcials have adjudicated certain matters, while others have required resolution in an Article III court. An executive offcial properly vested with the authority to fnd facts, apply the law to those facts, and impose the consequences prescribed by law exercises executive power under Article II, not judicial power under Arti- cle III. See Arlington FCC , 569 U. S. 290, 305, n. 4 (2013) (explaining that agency rulemaking and adjudications may “take `legislative' and `judi- cial' forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the `executive Power' ” (quoting Art. II, § 1, cl. 1)).
Sotomayor, J. , dissenting
at 345 (explaining that if non-Article III adjudication is per- missible, then “ `the Seventh Amendment poses no independ- ent bar to the adjudication of that action by a nonjury fact- fnder' ” (quoting Granfnanciera , 492 U. S., at 53–54)); see W. Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1571 (2020) (“The Article III analysis should be con- ducted frst, on its own. And then . . . if the non-Article III adjudication is permissible, the Seventh Amendment should be ignored”). When executive power is at stake, Congress does not violate Article III or the Seventh Amendment by authorizing a nonjury factfnder to adjudicate the dispute.
So, the critical issue in this type of case is whether Con- gress can assign a particular matter to a non-Article III factfnder.
B
For more than a century and a half, this Court has an- swered that Article III question by pointing to the distinc- tion between “private rights” and “public rights.” See Mur- ray's Lessee v. Hoboken Land & Improvement Co. , 18 How. 272, 284 (1856) (recognizing public-rights exception). The distinction is helpful because public rights always can be as- signed outside of Article III. They “ `do not require judicial determination' ” under the Constitution, even if they “ `are susceptible of it.' ” Crowell Benson , 285 U. S. 22, 50 (1932) (quoting Ex parte Bakelite Corp. , 279 U. S. 438, 451 (1929)).
The majority says that aspects of the public-rights doctrine
have been confusing. See
ante,
at 130–131. That might be
true for cases involving wholly private disputes, but not for
cases where the Government is a party.
[3]
It has long been
[3]
Every case that has expressed consternation about the precise contours
of the public-rights doctrine, including those cited by the majority, involve
only private disputes—or, more precisely, “disputes to which the Federal
Government is not a party in its sovereign capacity.”
Granfnanciera,
S. A. Nordberg
,
Sotomayor, J. , dissenting
settled and undisputed that, at a minimum, a matter of public
rights arises “between the government and persons subject
to its authority in connection with the performance of the
constitutional functions of the executive or legislative de-
partments.”
Crowell
, 285 U. S., at 50;
Oil States
, 584 U. S.,
at 335 (describing the “Court's longstanding formulation of
the public-rights doctrine”); accord,
Granfnanciera
, 492
U. S., at 51, and n. 8;
Atlas Roofng
, 430 U. S., at 452, 457;
Ex parte Bakelite Corp.
, 279 U. S., at 451. Indeed, “from
the time the doctrine of public rights was born, in 1856,”
everyone understood that public rights “ `arise “between the
government and others,” ' ” and refer to “rights
of the pub-
lic
—that is, rights pertaining to claims brought by or against
the United States.”
Granfnanciera
, 492 U. S., at 68–69
(Scalia, J., concurring in part and concurring in judgment);
see
ibid.
(collecting sources). So, while this Court has rec-
ognized public rights in certain disputes between private
parties, see
infra
, at 185–186, the doctrine's heartland con-
sists of claims belonging to the Government.
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. See
Atlas Roofng
,
[4] Judicial review of these agency decisions allows Congress to avoid any due process concerns that might arise from having executive offcials deprive someone of their property without review in an Article III 175
Sotomayor, J. , dissenting
Court has repeatedly emphasized these unifying principles through an unbroken series of cases over almost 200 years.
Start at the beginning, with
Murray's Lessee
in 1856. In
that case, the Government issued a warrant to compel a fed-
eral customs collector to produce public funds that the Gov-
ernment determined the collector had unlawfully withheld.
See 18 How., at 274–275. The Government executed the
warrant to seize and sell a plot of the collector's land to make
up for the withheld funds. See
id.
, at 274. In upholding the
sale of the seized property, this Court concluded that the
Government's in-house assessment and collection of taxes
and penalties based on a federal offcial's adjudication of the
facts did not violate Article III. The scheme was constitu-
tional, the Court said, because “public rights” were at issue.
Id
., at 284. In other words, the dispute arose between the
Government and the customs collector in connection with the
court. See
Atlas Roofng Co.
v.
Occupational Safety and Health Review
Comm'n
,
Sotomayor, J. , dissenting
Government's exercise of its constitutional power to collect revenue. Congress could have brought such claims, if it wanted, “within the cognizance of the courts of the United States, as it may deem proper.” Ibid. The Court thus en- dorsed that constitutional balance: Congress could decide whether to assign a public-rights dispute to the Executive for initial adjudication subject to judicial review or to an Article III federal court for resolution.
Fast forward half a century. In
Oceanic Steam Nav. Co.
Stranahan
,
Importantly, Stranahan rejected the “proposition” that, in “cases of penalty or punishment, . . . enforcement must de- pend upon the exertion of judicial power, either by civil or criminal process.” Id ., at 338. In words that could have been written in response to today's ruling, the Court ex- plained that such a “proposition magnifes the judicial to the detriment of all other departments of the Government, disre- gards many previous adjudications of this court and ignores
Sotomayor, J. , dissenting
practices often manifested and hitherto deemed to be free from any possible constitutional question.” Ibid. For that reason, the validity of legislation authorizing the non-Article III adjudication of civil-penalty claims does not turn on the Judiciary's assessment of whether it is necessary for execu- tive offcials “to enforce designated penalties without resort to the courts.” Id ., at 339. Whether or not such legislation violates Article III depends on whether Congress acted pur- suant to a “grant of power made by the Constitution,” and not on whether it “relate[s] to subjects peculiarly within the authority of the legislative department of the Government” or on the circumstances that might have “caused Congress to exert a specifed power.” Id ., at 339–340.
By the time
Stranahan
was decided, Congress already
routinely “impose[d] appropriate obligations and sanction[ed]
their enforcement by reasonable money penalties, giving to
executive offcers the power to enforce such penalties with-
out the necessity of invoking the judicial power.”
Id
., at
339. Far from limiting the public-rights doctrine to the par-
ticular context in
Stranahan
and prior cases, this Court has
expressly rejected the notion that the public-rights doctrine
is so confned. See
infra
, at 184–185. This Court has re-
peatedly approved Congress's assignment of public rights to
agencies in diverse areas of the law, refecting Congress's
varied constitutional powers.
[5]
A nonexhaustive list in-
cludes “interstate and foreign commerce, taxation, immigra-
tion, the public lands, public health, the facilities of the post
offce, pensions and payments to veterans,”
Crowell
, 285
U. S., at 51, and n. 13 (collecting cases); see also,
e
.
g
.,
Helve-
ring Mitchell
,
178 v.
Sotomayor, J. , dissenting
instatement of dismissed employee and backpay in adjudica-
tion of unfair-labor-practices claim under the National Labor
Relations Act);
Phillips
v.
Commissioner
,
The list could go on and on. That is because, in every case where the Government has acted in its sovereign capacity to enforce a new statutory obligation through the administra- tive imposition of civil penalties or fnes, this Court, without exception, has sustained the statutory scheme authorizing that enforcement outside of Article III.
A unanimous Court made this exact point nearly half a century ago in Atlas Roofng . That was the last time this Court considered a public-rights case where the constitution- ality of an in-house adjudication of statutory claims brought by the Government was at issue. That case presented the same question as this one: Whether the Seventh Amendment permits Congress to commit the adjudication of a new cause of action for civil penalties to an administrative agency. 430 U. S., at 444. The Court said it did.
In Atlas Roofng , the Court explained how Congress iden- tifed a national problem, concluded that existing legal reme- dies were inadequate to address it, and then created a new statutory scheme that endorsed Executive in-house enforce- ment as a solution. Specifcally, Congress found “that work- related deaths and injuries had become a `drastic' national problem,” and that existing causes of action, including tort
Sotomayor, J. , dissenting
actions for negligence and wrongful death, did not ade- quately “protect the employee population from death and in- jury due to unsafe working conditions.” Id. , at 444–445. In response, Congress enacted the Occupational Safety and Health Act of 1970 (OSHA) to require employers “to avoid maintaining unsafe or unhealthy working conditions.” Id ., at 445. OSHA in turn “empower[ed] the Secretary of Labor to promulgate health and safety standards,” and the Occupa- tional Safety and Health Review Commission to impose civil penalties on employers maintaining unsafe working condi- tions, regardless of whether any worker was in fact injured or killed. Id. , at 445–446.
Two employers that had been assessed civil penalties for OSHA violations resulting in the death of employees chal- lenged the constitutionality of the statute's enforcement pro- cedures. They observed that “a suit in a federal court by the Government for civil penalties for violation of a statute is a suit for a money judgment[,] which is classically a suit at common law.” Id ., at 449. Therefore, the employers claimed, the Seventh Amendment right to a jury attached and Congress could not assign the matter to an agency for resolution. See ibid.
This Court upheld OSHA's statutory scheme. It relied on the long history of public-rights cases endorsing Congress's now-settled practice of assigning the Government's rights to civil penalties for violations of a statutory obligation to in- house adjudication in the frst instance. See id ., at 450–455. In light of this “history and our cases,” the Court concluded that, where Congress “create[s] a new cause of action, and remedies therefor, unknown to the common law,” it is free to “plac[e] their enforcement in a tribunal supplying speedy and expert resolutions of the issues involved.” Id ., at 460–461. “This is the case even if the Seventh Amendment would have required a jury where the adjudication of those rights is as- signed to a federal court of law.” Id ., at 455; see id ., at 461, n. 16.
Sotomayor, J. , dissenting
The “new rule” and “legally unsound principle” that the
majority accuses this dissent of “unfurl[ing]” today,
ante,
at 131, n. 2, is the one that this Court declared “ `settled
judicial construction' . . . `from the beginning' ”: “[T]he Gov-
ernment could commit the enforcement of statutes and the
imposition and collection of fnes . . . for administrative en-
forcement, without judicial trials,” even if the same action
would have required a jury trial if committed to an Article
III court.
Atlas Roofing
, 430 U. S., at 460 (collecting
cases); accord,
Elting
,
It should be obvious by now how this case should have been resolved under a faithful and straightforward applica- tion of Atlas Roofng and a long line of this Court's prece- dents. The constitutional question is indistinguishable. The majority instead wishes away Atlas Roofng by burying it at the end of its opinion and minimizing the unbroken line of cases on which Atlas Roofng relied. That approach to precedent signifcantly undermines this Court's commitment to stare decisis and the rule of law.
This case may involve a different statute from Atlas Roofng , but the schemes are remarkably similar. Here, just as in Atlas Roofng , Congress identifed a problem; concluded that the existing remedies were inadequate; and enacted a new regulatory scheme as a solution. The problem was a lack of transparency and accountability in the securities mar- ket that contributed to the Great Depression of the 1930s. See ante, at 115. The inadequate remedies were the then-
Sotomayor, J. , dissenting
existing state statutory and common-law fraud causes of
action. The solution was a comprehensive federal scheme
of securities regulation consisting of the Securities Act of
1933, the Securities Exchange Act of 1934, and the Invest-
ment Advisers Act of 1940. See
ante
, at 115–116. In par-
ticular, Congress enacted these securities laws to ensure
“full disclosure” and promote ethical business practices “in
the securities industry,” v.
Capital Gains Research Bu-
reau, Inc.
, 375 U. S. 180, 186 (1963), as well as to “protect
investors against manipulation of stock prices,”
Ernst &
Ernst Hochfelder
,
The prophylactic nature of the statutory regime also is virtually indistinguishable from the OSHA scheme at issue in Atlas Roofng . Among other things, these securities laws prohibit the misrepresentation or concealment of various material facts through the imposition of federal registration and disclosure requirements. See ante, at 116. Critically, federal-securities laws do not require proof of actual reliance on an investor's misrepresentations or that an “investor has actually suffered fnancial loss.” Ante, at 118; see also SEC v. Life Partners Holdings, Inc. , 854 F. 3d 765, 779 (CA5 2017); SEC Blavin , 760 F. 2d 706, 711 (CA6 1985) ( per curiam ). OSHA too prohibits conduct that could, but does not necessarily, injure a private person. Atlas Roofng , 430 U. S., at 445 (OSHA remedies “exis[t] whether or not an em- ployee is actually injured or killed as a result of the [unsafe or unhealthy working] condition”). The employer's failure to maintain safe and healthy working conditions violates OSHA even if there is no actionable harm to an employee, just as a misrepresentation to investors in connection with the buying or selling of securities violates federal-securities law even if there is no actual injury to the investors.
Moreover, both here and in Atlas Roofng , Congress em- powered the Government to institute administrative enforce- ment proceedings to adjudicate potential violations of federal law and impose civil penalties on a private party for those v.
Sotomayor, J. , dissenting
violations, all while making the fnal agency decision subject to judicial review. In bringing a securities claim, the SEC seeks redress for a “violation” that “is committed against the United States rather than an aggrieved individual,” which “is why, for example, a securities-enforcement action may proceed even if victims do not support or are not parties to the prosecution.” Kokesh SEC , 581 U. S. 455, 463 (2017). Put differently, the SEC seeks to “ `remedy harm to the pub- lic at large' ” for violation of the Government's rights. Ibid. The Government likewise seeks to remedy a public harm when it enforces OSHA's prohibition of unsafe working conditions.
Ultimately, both cases arise between the Government and others in connection with the performance of the Govern- ment's constitutional functions, and involve the Government acting in its sovereign capacity to bring a statutory claim on behalf of the United States in order to vindicate the public interest. They both involve, as Atlas Roofng put it, “new cause[s] of action, and remedies therefor, unknown to the common law.” 430 U. S., at 461. Neither Article III nor the Seventh Amendment prohibits Congress from assigning the enforcement of these new “Governmen[t] rights to civil penalties” to non-Article III adjudicators, and thus “supply- ing speedy and expert resolutions of the issues involved.” Id. , at 450, 461. In a world where precedent means some- thing, this should end the case. Yet here it does not.
III
The practice of assigning the Government's right to civil penalties for statutory violations to non-Article III adjudi- cation had been so settled that it become an undisputable reality of how “our Government has actually worked. ” Consumer Financial Protection Bureau , 601 U. S., at 445 ( Kagan , J., concurring). That is why the Court has had no cause to address this kind of constitutional challenge since its unanimous decision in Atlas Roofng . The majority takes a
Sotomayor, J. , dissenting
wrecking ball to this settled law and stable government practice. To do so, it misreads this Court's precedents, ig- nores those that do not suit its thesis, and advances distinc- tions created from whole cloth.
The majority's treatment of the public-rights doctrine is
not only incomplete, but is gerrymandered to produce today's
result. See Part III–A (
infra
, at 183–187). Unable to ex-
plain that doctrine, the majority effectively ignores the Arti-
cle III threshold question to focus instead on two Seventh
Amendment cases:
Tull United States
,
A
To start, it is almost impossible to discern how the major- ity defnes a public right and whether its view of the doctrine is consistent with this Court's public-rights cases. The ma- jority at times seems to limit the public-rights exception to areas of its own choosing. It points out, for example, that some public-rights cases involved the collection of revenue, customs law, and immigration law, see ante , at 128–130, and that Atlas Roofng involved OSHA and not “civil penalty suits for fraud,” ante , at 136. [6] Other times, the majority highlights a particular practice predating the founding, such [6] The majority also cites cases involving “relations with Indian tribes, the administration of public lands, and the granting of public benefts such as payments to veterans, pensions, and patent rights.” Ante, at 130 (cita- tions omitted).
Sotomayor, J. , dissenting
as the “unbroken tradition” in Murray's Lessee of executive officials issuing warrants of distress to collect revenue. Ante , at 128; see also ante , at 153 ( Gorsuch , J., concurring). Needless to say, none of these explanations for the doctrine is satisfactory. What is the legal principle behind saying only these areas and no further? This Court has rejected that kind of arbitrary line-drawing in cases like Stranahan and Atlas Roofng . How does the requirement of a histori- cal practice dating back to the founding, or “fow[ing] from centuries-old rules,” ante , at 131, account for the broad uni- verse of public-rights cases in the United States Reports? The majority does not say.
The majority's only other theory fares no better. The ma- jority seems to suggest that a common thread underlying these cases is that “the political branches had traditionally held exclusive power over th[ese] feld[s] and had exercised it.” Ante, at 130. To the extent the majority thinks this is a distinction, it fails for at least two reasons. First, Atlas Roofng expressly rejected the argument that the public-rights doctrine is limited to particular exercises
of congressional power. The employers in
Atlas Roofng
ar-
gued “that cases such as
Murray's Lessee
,
Elting
, [
Strana-
han
],
Phillips
, and
Helvering
all deal with the exercise of
sovereign powers that are inherently in the exclusive domain
of the Federal Government and critical to its very exist-
ence—the power over immigration, the importation of goods,
and taxation.”
Sotomayor, J. , dissenting
See id ., at 456–457; cf. Crowell , 285 U. S., at 51 (offering a list of “[f]amiliar illustrations of . . . exercise[s]” of Congress's constitutional authority that have fallen within the public- rights exception to Article III).
Second, even if Atlas Roofng had not explicitly rejected the proposed distinction here, the majority cannot reconcile its restrictive view of the public-rights doctrine with Atlas Roofng and other precedents. For example, it is unclear how OSHA, or the National Labor Relations Act at issue in Jones & Laughlin , would ft the majority's view of the public-rights doctrine, or why the exercise of interstate- commerce power to enact those statutes would be any differ- ent from the exercise of that same power to enact the federal-securities laws at issue here. See Atlas Roofng , 430 U. S., at 457 (“It is also apparent that Jones & Laughlin , Pernell , and Curtis are not amenable to the limitations sug- gested by [the employers]”).
The majority's description of the doctrine also fails to ac- count for public rights that do not belong to the Federal Gov- ernment in its sovereign capacity. See Granfnanciera , 492 U. S., at 54 (“[T]he Federal Government need not be a party for a case to revolve around `public rights' ”). This Court, after all, has rejected the confnement of public rights to that heartland. See ibid. (“[W]e [have] rejected the view that `a matter of public rights must at a minimum arise “between the government and others” ' ”). Conspicuously absent from the majority's discussion are, for example, cases in which this Court held that Congress could assign a private federally created action that was “closely integrated into a public reg- ulatory scheme” for adjudication in a non-Article III forum. Thomas v. Union Carbide Agricultural Products Co. , 473 U. S. 568, 594 (1985). These cases include, for example, an agency's adjudication of state-law counterclaims to an inves- tor's federal action against its broker, Commodity Futures Trading Comm'n Schor , 478 U. S. 833, 835–836, 847–850 (1986), and the arbitration of data-compensation disputes *79 186 v.
Sotomayor, J. , dissenting
among participants in the Environmental Protection Agency's pesticide registration scheme, Thomas , 473 U. S., at 571, 589–592. Both Thomas and Schor thus upheld the non-Article III adjudication of disputes between private par- ties, which naturally did not involve the Government in its sovereign capacity.
Even accepting the majority's public-rights-are-confusing
defense, its “strategy for dealing with the confusion is not to
offer a theory for rationalizing this body of law,” but to pro-
vide an incomplete and unprincipled account of the doctrine.
Haaland Brackeen
,
The majority also attacks a strawman when it asserts that “precedents foreclose th[e] argument” that the public-rights doctrine “applies whenever a statute increases governmental effciency.” Ante, at 140; see also ante, at 158–159 ( Gorsuch , J., concurring). No one has made that argument in this case; not the Government and certainly not this dissent. The fact that certain rights might be susceptible to speedy and expert resolution through non-Article III adjudication is not what like a “picky child at the dinner table.” Ante, at 160 (opinion of Gorsuch, [7] Among other things, the concurrence accuses this dissent of behaving J. ). The precedents, though, speak for themselves. It is the majority and concurrence that pick and choose among public-rights cases, excluding broad strands of precedent constituting the doctrine.
Sotomayor, J. , dissenting
makes them “rights
of the public
—that is, rights pertaining
to claims brought by or against the United States.”
Gran-
fnanciera
,
It is not clear what else, if anything, might qualify as a public right, or what is even left of the doctrine after today's opinion. Rather than recognize the long-settled principle that a statutory right belonging to the Government in its sovereign capacity falls within the public-rights exception to Article III, the majority opts for a “we know it when we see it” formulation. This Court's precedents and our coequal branches of Government deserve better.
B
Rather than relying on Atlas Roofng or the relevant public-rights cases, the majority instead purports to follow Tull and Granfnanciera . The former involved a suit in federal court and the latter involved a dispute between pri- vate parties. So, just like that, the majority ventures off on the wrong path. Indeed, as explained below, both the majority and the concurrence miss the critical distinction drawn in this Court's precedents between the non-Article III adjudication of public-rights matters involving the liability of one individual to another and those involving claims be- longing to the Government in its sovereign capacity.
According to the majority, respondents are entitled to a jury trial in federal court because, as here, Tull involved a Government claim for civil penalties, and Granfnanciera looked to the common law to determine if a statutory cause of action was legal in nature. By focusing on the remedy in this case, and the perceived similarities between the statu- tory cause of action and a common-law analogue, the major- ity elides the critical distinction between those cases and this one: Whether Congress assigned the Government's sover- eign rights to civil penalties to a non-Article III factfnder for adjudication.
188
Sotomayor, J. , dissenting
The majority baffingly proclaims that “the remedy is all
but dispositive” in this case,
ante,
at 123, ignoring that
Atlas
Roofng
and countless precedents before it rejected that
proposition. Not content to take just a page from the em-
ployers' challenge in
Atlas Roofng
, the majority has taken
their whole brief, resuscitating yet another theory that this
Court has long foreclosed. The employers in
Atlas Roofng
argued that the Seventh Amendment prohibited Congress
from assigning to an agency the same remedy at issue here:
civil penalties. See
As discussed above, this Court has long endorsed statu-
tory schemes authorizing agency adjudicators to fnd viola-
tions and award civil penalties to the Government. See
supra
, at 175–178. Long before
Atlas Roofng
, this Court
held that the Constitution permits Congress to enact statu-
tory obligations and then “sanction their enforcement by rea-
sonable money penalties” by government offcials “without
the necessity of invoking the judicial power.”
Stranahan
,
Again, even if over a century of precedent did not foreclose the majority's argument, it fails on its own terms. The ma- jority relies almost entirely on Tull , which held that statu- tory claims for civil penalties were “a type of remedy at com- mon law” that entitled a defendant to a jury trial. 481 U. S., at 422; see id ., at 425. Critically, however, the Tull Court's
Sotomayor, J. , dissenting
analysis took place in an entirely different context: federal
court. See
ante,
at 122 (“In [
Tull
], the Government sued a
real estate developer for civil penalties [under the Clean
Water Act]
in federal court
” (emphasis added)).
Tull
did
not present the question at issue in
Atlas Roofng
and other
cases involving non-Article III adjudication of Government
claims in the frst instance. Rather,
Tull
stands for the un-
remarkable proposition that, when the Government sues an
entity for civil penalties in federal district court, the Seventh
Amendment entitles the defendant “to a jury trial to deter-
mine his liability on the legal claims.”
That conclusion says nothing about the constitutionality of the SEC's in-house adjudicative scheme. Atlas Roofng and its predecessors could not have been clearer on this point: Congress can assign the enforcement of a statutory obliga- tion for in-house adjudication to executive offcials, “even if the Seventh Amendment would have required a jury where the adjudication of those rights is assigned to a federal court of law instead of an administrative agency.” 430 U. S., at 455. Although “the Government could commit the enforce- ment of statutes and the imposition and collection of fnes to the judiciary, in which event jury trial would be required,” the Government “could also validly opt for administrative enforcement, without judicial trials.” Id ., at 460 (citing Stranahan , 214 U. S., at 339; Hepner United States , 213 U. S. 103 (1909); United States Regan , 232 U. S. 37 (1914); Helvering , 303 U. S., at 402–403; Crowell , 285 U. S., at 50– 51); Curtis , 415 U. S., at 195 (explaining that Congress can “entrust [the] enforcement of statutory rights to an adminis- trative process . . . free from the strictures of the Seventh Amendment,” but must abide by the Amendment when it does so “in an ordinary civil action in the district courts”).
It would have been quite remarkable for Tull , which in- volved a claim in federal court, to overrule silently more than a century of case law involving non-Article III adjudications of the Government's rights to civil penalties for statutory *83 190
Sotomayor, J. , dissenting
violations. Of course,
Tull
did no such thing.
Tull
even
reaffrmed
Atlas Roofng
by emphasizing that the Seventh
Amendment depends on the forum, not just the remedy, be-
cause it “is not applicable to administrative proceedings.”
2
The majority next argues that the “close relationship” be-
tween the federal-securities laws and common-law fraud
“confrms that this action is `legal in nature,' ” and entitles
respondents to a jury trial.
Ante,
at 126. That argument
does not fare any better than the argument on remedy.
Again, the majority bends inapposite case law to an illogical
thesis.
Granfnanciera
, on which the majority relies to
make its cause-of-action argument, set forth the public-
rights analysis only for “disputes to which the Federal Gov-
ernment is not a party in its sovereign capacity.” 492 U. S.,
at 55, n. 10. For cases that, as here, involve the Government
in its sovereign capacity, the
Granfnanciera
Court plainly
stated that “Congress may fashion causes of action that are
closely
analogous
to common-law claims and [still] place
them beyond the ambit of the Seventh Amendment by as-
signing their resolution to a [non-Article III] forum in which
jury trials are unavailable.”
Id.
, at 52 (citing
Atlas Roofng
,
[8]
The majority leaves open the possibility that
Granfnanciera
might
have overruled
Atlas Roofing
. See
ante,
at 136. That suggestion
strains credulity. By my count,
Granfnanciera
favorably cites to
Atlas
Roofng
at least 12 times. See
Sotomayor, J. , dissenting
The Court held in
Granfnanciera
that “a person who has
not submitted a claim against a bankruptcy estate has a right
to a jury trial when sued by the trustee in bankruptcy to
recover an allegedly fraudulent monetary transfer.” 492
U. S., at 36. In doing so, the Court noted that actions to
recover such transfers through a claim of fraudulent convey-
ance were traditionally available at common law. See
id
., at
43–49. That did not resolve the case, however. Unlike in
Tull
, the proceeding at issue in
Granfnanciera
was in a non-
Article III forum (
i
.
e
., a bankruptcy court). So, to answer
whether Congress could assign the fraudulent-conveyance
claim to a bankruptcy judge for decision, Congress needed
to decide whether the “legal cause of action involve[d] `public
rights.' ”
Granfnanciera
explains that there are two ways to iden-
tify a “public right.” First, there are the matters in which
Congress enacts a statutory cause of action that “inheres
in, or lies against, the Federal Government in its sovereign
capacity.”
Ibid
. (citing
Atlas Roofng
, 430 U. S., at 458).
These matters necessarily arise between the Government
and the people in connection with the Government's exercise
of its constitutional authority. See
supra,
at 173–174. In
these cases, the Court said,
Atlas Roofng
controls the
public-rights analysis. See
Granfnanciera
,
Sotomayor, J. , dissenting
plant a common-law cause of action carrying with it a right
to a jury trial with a statutory cause of action shorn of a jury
trial right if that statutory cause of action inheres in, or lies
against, the Federal Government in its sovereign capacity.”
Id
., at 53 (citing
Atlas Roofng
,
The second kind of public right that
Granfnanciera
recog-
nized involves “disputes to which the Federal Government is
not a party in its sovereign capacity,”
Because Granfnanciera did not involve a statutory right that belonged to the Government in its sovereign capacity, Atlas Roofng did not control the outcome. Instead, the Court applied the private-disputes test to determine whether fraudulent-conveyance “actions were `closely inter- twined' with the bankruptcy regime.” Ante , at 133 (quoting Granfnanciera , 492 U. S., at 54). The Court held that the fraudulent-conveyance actions “were not inseparable from
Sotomayor, J. , dissenting
the bankruptcy process,” and thus the public-rights excep- tion did not apply. Ante , at 134 (citing Granfnanciera , 492 U. S., at 54, 56).
The majority brushes aside this critical distinction be-
tween
Atlas Roofng
and
Granfnanciera
in one sentence.
That “the Government is the party prosecuting this action,”
the majority writes, is meaningless because this Court has
“never held that the `presence of the United States as a
proper party to the proceeding is . . . suffcient' by itself
to trigger the exception.”
Ante
, at 135 (quoting
Northern
Pipeline Constr. Co. Marathon Pipe Line Co.
,
By no means, though, does this case involve a “purely taxo-
nomic change.”
Granfnanciera
,
[10] The majority spills much ink on the perceived similarities between federal-securities fraud and common-law fraud, only to conclude that the causes of action are not identical. That conclusion was inevitable because of critical differences between the two. Even if Congress drew upon
Sotomayor, J. , dissenting
portantly, Congress created a new right unknown to the com- mon law that, unlike common-law fraud, belongs to the public and inheres in the Government in its sovereign capacity. That is why, when the SEC seeks to enforce the federal- securities laws, it does so to remedy the harm to the United States. See supra , at 182. It seeks to protect the integrity of the securities market as a whole through the imposition of new and distinct remedies like civil penalties and orders barring violators from holding certain positions and perform- ing certain activities in the industry. See 15 U. S. C. §§ 77h– 1(f), and (g), 78u–2, 78u–3(f).
For these reasons, “[a]n action brought by an Executive Branch agency to enforce federal securities laws is not the same as an action brought by one individual against another for monetary or injunctive relief of the sort that law courts (with juries) in England or the States have traditionally heard.” Brief for Professor John Golden et al. as Amici Cu- riae 3. Congress did not unlawfully “siphon” a traditional legal action “away from an Article III court” when it enacted the federal-securities laws and provided for their enforce- ment within the SEC. Ante, at 135.
The majority asserts that “ Granfnanciera effectively de- cides this case.” Ante , at 134. That can only be true, though, if one ignores what Granfnanciera actually says: Its public- rights analysis of whether an action is closely intertwined with a federal regulatory program only applies “in cases not common-law fraud when it enacted federal-securities laws, see ante, at 125–126, this Court has repeatedly disclaimed any suggestion that Con- gress federalized a common-law fraud claim. See, e . g ., Stoneridge Invest- ment Partners, LLC v. Scientifc-Atlanta, Inc. , 552 U. S. 148, 162 (2008) (“Section 10(b) does not incorporate common-law fraud into federal law”); SEC Zandford , 535 U. S. 813, 820 (2002) (“[T]he statute must not be construed so broadly as to convert every common-law fraud that happens to involve securities into a violation of § 10(b)”); Herman & MacLean v. Huddleston , 459 U. S. 375, 388–389 (1983) (“[T]he antifraud provisions of the securities laws are not coextensive with common-law doctrines of fraud”).
Sotomayor, J. , dissenting
involving the Federal Government.” 492 U. S., at 54. The
analysis from
Atlas Roofng
controls where, as here, “ `the
Government is involved in its sovereign capacity under an
otherwise valid statute.' ” 492 U. S., at 51 (quoting
Atlas
Roofng
,
C
Both cases relied on by the majority, Tull and Granfnan- ciera , reaffrm that Atlas Roofng controls precisely in cir- cumstances like the ones at issue in this case. That is why the majority's late-stage attempt to distinguish Atlas Roofng fails. The majority's principal argument that the OSHA scheme in Atlas Roofng “did not borrow its cause of action from the common law” and was instead a “self- consciously novel” scheme that “resembled a detailed build- ing code,” ante, at 136–137, is fawed on multiple fronts.
First, OSHA's cause of action should be largely irrelevant under the majority's view that the remedy of civil penalties is effectively dispositive under Tull . Atlas Roofng , and many other cases involving non-Article III adjudications,
also involved civil penalties designed to punish and deter, and yet the majority does not expressly disavow them. Logically, then, either Atlas Roofng and countless other cases were wrongly decided, or the majority's view on civil penalties is wrong.
Second, because the majority elides the critical distinction between Atlas Roofng and Granfnanciera , it fails to grap- ple with the fact that this case, like Atlas Roofng and unlike Granfnanciera , involves the Government acting in its sov- ereign capacity to enforce a statutory violation. That makes the right at issue a “public right” that Congress can take outside the purview of Article III, even when the new cause of action is analogous to a common-law claim.
Third, the relationship between the federal-securities laws (including their antifraud provisions) and common-law fraud is materially indistinguishable from the relationship between OSHA and the common-law torts of wrongful death and *89 196
Sotomayor, J. , dissenting
negligence. Unlike their common-law comparators, neither statute requires actionable harm to an individual. See supra , at 181. In arguing that OSHA's scheme was “self- consciously” novel in ways unknown to the common law, the majority points to the granularity of OSHA standards. Ante, at 137. Yet lawyers and regulated parties in the securities industry would be surprised to hear that this could be a distinguishing feature. Anyone familiar with the industry knows securities laws are replete with specifc and ex- ceedingly detailed requirements implementing the statute's disclosure and antifraud provisions. See, e . g ., 17 CFR § 275.206(4)–1(b) (2023) (prohibiting testimonials and en- dorsements that do not satisfy requirements without meet- ing complex disclosure requirements); § 275.206(4)–2(a) (pro- hibiting investment advisers from having custody of client funds or securities unless specifc requirements are met, in- cluding qualifcations, notices, and account statements).
The majority further rests on the notion that Congress drew inspiration from the common law in enacting the anti- fraud provisions of the federal-securities laws, whereas OSHA's new statutory duty did not bring any common-law soil with it. See ante, at 136–137. Yet both statutes share elements with claims at common law that Congress deemed inadequate to address the national problems that prompted it to legislate. See supra , at 180–181. Still, even accepting that federal-securities laws bring common-law soil with them and OSHA does not, the majority does not explain why that is a constitutionally relevant distinction.
In sum, all avenues by which the majority attempts to dis- tinguish Atlas Roofng fail. The majority cannot escape the [11] In Tull United States , 481 U. S. 412 (1987), for example, there was no common-law soil brought into that federal regulatory regime, and the Seventh Amendment still applied. Indeed, no one can argue that “[t]he purpose of [the Clean Water Act] was . . . to enable the Federal Govern- ment to bring or adjudicate claims that traced their ancestry to the com- mon law.” Ante , at 137.
Sotomayor, J. , dissenting
entrenched principle that a “legal cause of action involves `public rights' ” that can be taken outside of Article III if the “statutory right is . . . closely intertwined with a federal regulatory program Congress has power to enact” or if it “belongs to [o]r exists against the Federal Government.” Granfnanciera , 492 U. S., at 53–54. [12] In both Atlas Roof- ing and this case, a public right exists. In both statutory schemes, regardless of any perceived resemblance to the common law, Congress enacted a new cause of action that created a statutory right belonging to the United States for the Government to enforce pursuant to its sovereign powers.
IV
A faithful and straightforward application of this Court's
longstanding precedent should have resolved this case.
Faithful “[a]dherence to precedent is `a foundation stone of
the rule of law.' ”
Kisor
v.
Wilkie
, 588 U. S. 558, 586 (2019)
(quoting
Michigan
v.
Bay Mills Indian Community
, 572
U. S. 782, 798 (2014)). It allows courts to function, and be
perceived, as courts, and not as political entities. “ `It pro-
[12]
The concurrence's assertion that the majority is “follow[ing] the advice
of Justices Brennan and Marshall” by “ `limit[ing] the judicial authority of
non-Article III federal tribunals' ” is misleading.
Ante,
at 159 (quoting
Commodity Futures Trading Comm'n Schor
, 478 U. S. 833, 859 (1986)
(Brennan, J., joined by Marshall, J., dissenting)). Justice Brennan in his
Schor
dissent wrote that he would limit the authority of non-Article III
tribunals to three recognized exceptions: (1) territorial courts; (2) courts-
martial; and (3) forums adjudicating public-rights matters. See
id
., at
859. As examples of the public-rights category, Justice Brennan cited
Murray's Lessee
,
Ex parte Bakelite
,
Crowell
,
Thomas
, and his plurality
opinion in
Northern Pipeline
. See
Ibid
. As those citations demonstrate,
both Justices Brennan and Marshall certainly thought that public-rights
matters extend to certain private disputes that do not involve the Govern-
ment as a party, as well as disputes involving the Government in connec-
tion with different exercises of congressional power. Indeed, it was Jus-
tice Brennan who reaffrmed
Atlas Roofng
in his opinion for the
Granfnanciera
Court and explained that a public right includes, at a mini-
mum, a statutory right that “belongs to [o]r exists against the Federal
Government.”
198 v.
Sotomayor, J. , dissenting
motes the evenhanded, predictable, and consistent develop-
ment of legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of the
judicial process.' ” 588 U. S., at 586–587 (quoting
Payne
v.
Tennessee
, 501 U. S. 808, 827 (1991); alterations omitted).
That is why, “even in constitutional cases, a departure from
precedent `demands special justification. ' ”
Gamble
v.
United States
, 587 U. S. 678, 691 (2019) (quoting
Arizona
v.
Rumsey
,
Today's decision disregards these foundational principles. Time will tell what is left of the public-rights doctrine. Less uncertain, however, are the momentous consequences that fow from the majority's insistence that the Govern- ment's rights to civil penalties must now be tried before a jury in federal court. The majority's decision, which strikes down the SEC's in-house adjudication of civil-penalty claims on the ground that such claims are legal in nature and entitle respondents to a federal jury, effects a seismic shift in this Court's jurisprudence. Indeed, “[i]f you've never heard of a
statute being struck down on that ground,” and you recall
having read countless cases approving of that arrangement,
“you're not alone.”
Seila Law LLC Consumer Financial
Protection Bureau
,
The majority pulls a rug out from under Congress without
even acknowledging that its decision upends over two centu-
[13]
Precedents should not be so easily discarded based on the views of
some commentators, or on whether or not a particular case is “celebrated.”
Ante
, at 138, n. 4.
Atlas Roofng
and the long line of cases before it are
precedents from this Court entitled to
stare decisis
effect. Indeed, this
Court has reaffrmed and repeatedly cited
Atlas Roofng
with approval.
See,
e
.
g
.,
Oil States
, 584 U. S., at 344–345;
Stern
, 564 U. S., at 489–490;
Granfnanciera
, 492 U. S., at 48, 51–54, 60–61;
id
., at 65–66 (Scalia, J.,
concurring in part and concurring in judgment);
Tull
, 481 U. S., at 418,
n. 4;
Northern Pipeline Constr. Co.
,
Sotomayor, J. , dissenting
ries of settled Government practice. The United States, led by then-Solicitor General Robert Bork and then-Assistant Attorney General for the Civil Division Rex Lee, told this Court in Atlas Roofng that “during the whole of our history, regulatory fnes and penalties have been collected by non- jury procedures pursuant to . . . legislative decisions,” and that “[i]t would be most remarkable if, at this late date, the Seventh Amendment were construed to outlaw this consist- ent rule of government followed for two centuries.” Brief for Respondents in Atlas Roofng , O. T. 1976, No. 75–746, etc., pp. 81–82. This Court agreed and upheld that practice, it seemed, once and for all.
Following this Court's precedents and the recommendation of the Administrative Conference of the United States, Con- gress has enacted countless new statutes in the past 50 years that have empowered federal agencies to impose civil penal- ties for statutory violations. See 2 P. Verkuil, D. Gifford, C. Koch, R. Pierce, & J. Lubbers, Administrative Conference of the United States, Recommendations and Reports, The Federal Administrative Judiciary 861, and nn. 350– 351 (1992). These statutes are sometimes enacted in addition to, but often instead of, “the traditional civil enforcement stat- utes that permitted agencies to collect civil money penalties only after federal district court trials.” Id ., at 861. “By 1986, there were over 200 such statutes” and “[t]he trend has, if anything, accelerated” since then. Id ., at 861, and n. 351.
Similarly, there are, at the very least, more than two dozen agencies that can impose civil penalties in administrative pro- ceedings. See Tr. of Oral Arg. 78–79 (Principal Deputy So- licitor General) (recognizing two dozen agencies with admin- istrative civil-penalty authorities); see also, e . g ., 5 U. S. C. § 1215(a)(3)(A)(ii) (Merit Systems Protection Board); 7 U. S. C. §§ 9(10)(C), 13a (Commodity Futures Trading Com- mission); §§ 499c(a), 586, 2279e(a) (Department of Agricul- ture); 8 U. S. C. §§ 1324c, 1324d (Department of Justice); 12 U. S. C. §§ 5563(a)(2), (c), (Consumer Financial Protection Bu-
Sotomayor, J. , dissenting
reau); 16 U. S. C. § 823b(c) (Federal Energy Regulatory Com- mission); 20 U. S. C. § 1082(g) (Department of Education); 21 U. S. C. § 335b (Department of Health and Human Services/ Food and Drug Administration); 29 U. S. C. § 666( j) (Occupa- tional Safety and Health Review Commission); 30 U. S. C. §§ 820(a) and (b) (Federal Mine Safety and Health Review Commission); 31 U. S. C. § 5321(a)(2) (Department of the Treasury); 33 U. S. C. §§ 1319(d) and (g) (Environmental Pro- tection Agency); 39 U. S. C. § 3018(c) (Postal Service); 42 U. S. C. § 3545(f) (Department of Housing and Urban Devel- opment); 46 U. S. C. § 41107(a) (Federal Maritime Commis- sion); 47 U. S. C. § 503(b)(3) (Federal Communications Com- mission); 49 U. S. C. § 521 (Federal Railroad Administration); § 46301 (Department of Transportation).
Some agencies, like the Consumer Financial Protection Bureau, the Environmental Protection Agency, and the SEC, can pursue civil penalties in both administrative proceedings and federal court. See, e . g ., 12 U. S. C. §§ 5563(a), 5564(a), 5565(a)(1), (2)(H), and (c) (Consumer Financial Protection Bu- reau); 33 U. S. C. §§ 1319(a), (b), and (g) (Environmental Pro- tection Agency); supra, at 2 (SEC). Others do not have that choice. As the above-cited statutes confrm, the Occupa- tional Safety and Health Review Commission, the Federal Energy Regulatory Commission, the Federal Mine Safety and Health Review Commission, the Department of Agricul- ture, and many others, can pursue civil penalties only in agency enforcement proceedings. For those and countless other agencies, all the majority can say is tough luck; get a new statute from Congress.
Against this backdrop, our coequal branches will be sur- prised to learn that the rule they thought long settled, and which remained unchallenged for half a century, is one that, according to the majority and the concurrence, my dissent just announced today. Unfortunately, that mistaken view means that the constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of
Sotomayor, J. , dissenting
their power to enforce laws enacted by Congress. Rather than acknowledge the earthshattering nature of its holding, the majority has tried to disguise it. The majority claims that its ruling is limited to “civil penalty suits for fraud” pursu- ant to a statute that is “barely over a decade old,” ante, at 131, n. 2, 136, an assurance that is in signifcant tension with other parts of its reasoning. That incredible assertion should fool no one. Today's decision is a massive sea change. Litigants seeking further dismantling of the “administrative state” have reason to rejoice in their win today, but those of us who cherish the rule of law have nothing to celebrate.
* * *
Today's ruling is part of a disconcerting trend: When it
comes to the separation of powers, this Court tells the Amer-
ican public and its coordinate branches that it knows best.
See,
e
.
g
.,
Collins
v.
Yellen
,
led by a single Director removable by the President only “ `for cause' ”); United States Arthrex, Inc. , 594 U. S. 1, 6, 23 (2021) (holding that “authority wielded by [Administrative Patent Judges] during inter partes review is incompatible with their appointment by the Secretary to an inferior of- fce”); Seila Law , 591 U. S., at 202–205 (holding that “the structure of the [Consumer Financial Protection Bureau] vi- olates the separation of powers” because it was led by a sin- gle Director removable by the President only “for cause”); Free Enterprise Fund Public Company Accounting Over- sight Bd. , 561 U. S. 477, 483–484, 492 (2010) (holding “that the dual for-cause limitations on the removal of [Public Com- pany Accounting Oversight] Board members contravene the Constitution's separation of powers”). The Court tells Con- gress how best to structure agencies, vindicate harms to the public at large, and even provide for the enforcement of rights created for the Government. It does all of this de- v.
Sotomayor, J. , dissenting
spite the fact that, compared to its political counterparts, “the Judiciary possesses an inferior understanding of the re- alities of administration” and how “political power . . . oper- ates.” Free Enterprise Fund , 561 U. S., at 523 (Breyer, J., dissenting).
There are good reasons for Congress to set up a scheme like the SEC's. It may yield important benefts over jury trials in federal court, such as greater effciency and exper- tise, transparency and reasoned decisionmaking, as well as uniformity, predictability, and greater political accountabil- ity. See, e . g ., Brief for Administrative Law Scholars as Amici Curiae 30–32. Others may believe those benefts are overstated, and that a federal jury is a better check on gov- ernment overreach. See, e . g ., Brief for Cato Institute as Amicus Curiae 11–25. Those arguments take place against the backdrop of a philosophical (and perhaps ideological) de- bate 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.
Make no mistake: Today's decision is a power grab. Once
again, “[t]he majority arrogates Congress's policymaking role
to itself.”
Garland Cargill
,
Sotomayor, J. , dissenting
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. The Federal- ist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison). Judicial aggrandizement is as pernicious to the separation of powers as any aggrandizing action from either of the political branches.
Deeply entrenched in today's ruling is the erroneous belief
that any “mistaken or wrongful exertion by the legislative
department of its authority” can lead to “grave abuses” and
“it behooves the judiciary to apply a corrective by exceeding
its own authority” through requiring civil-penalty claims to
proceed before a federal jury.
Stranahan
,
Because the Court disregards its own precedent and its coequal partners in our tripartite system of Government, I respectfully dissent.
Reporter’s Note
The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made: p. 109, line 3: “statues” is replaced with “statutes” p. 115, lines 15 and 16: “statues” is replaced with “statutes” p. 122, line 16 from bottom: “or” is replaced with “and” p. 141, line 9: “Security” is replaced with “Securities” p. 153, line 8 from bottom: “of ” is replaced with “at” p. 161, last line: “dissenting” is replaced with “concurring in judgment in
part and dissenting in part” p. 164, line 22: “25” is replaced with “35” p. 166, line 14: “(plurality opinion).” is inserted after “564” p. 179, line 4 from bottom: “That” is replaced with “This” p. 184, line 11: “Reporter” is replaced with “Reports” p. 187, line 3: “opinion of ” is inserted before “Scalia” p. 187, line 3: “concurring in part” is replaced with “).” p. 188, line 4: “and concurring in judgment” is deleted p. 199, line 17: “Verkuilm” is replaced with “Verkuil” p. 199, line 23: “money” is inserted after “civil”