Case Information
*1 (Slip Opinion) OCTOBER TERM, 2023
Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See
United States Detroit Timber & Lumber Co.,
Syllabus
SECURITIES AND EXCHANGE COMMISSION v . JARKESY ET AL .
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH 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 Advis- ers Act of 1940. These Acts respectively govern the registration of se- curities, the trading of securities, and the activities of investment ad- visers. Although each regulates different aspects of the securities markets, their pertinent provisions—collectively referred to by regula- tors as “the antifraud provisions,” App. to Pet. for Cert. 73a, 202a— target the same basic behavior: misrepresenting or concealing mate- rial 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 file 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 finds 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 dele- gee—typically an Administrative Law Judge—also finds facts and de- cides 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
Syllabus
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 firm, 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 final order determined that Jarkesy and Patriot28 had committed se- curities violations and levied a civil penalty of $300,000. Jarkesy and Patriot28 petitioned for judicial review. The Fifth Circuit vacated the order on the ground that adjudicating the matter in-house violated the defendants’ 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. 6–27.
(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
Granfinanciera, S. A.
v.
Nordberg
,
(b) The Court first explains why this action implicates the Seventh Amendment. (1) The right to trial by jury is “of such importance and occupies
so firm 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
v.
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 justifica-
tion for declaring Independence. In the Revolution’s aftermath, con-
cerns that the proposed Constitution lacked a provision guaranteeing
a jury trial right in civil cases was perhaps the “most success[ful]” cri-
tique leveled against the document during the ratification debates.
The Federalist No. 83, p. 495. To fix that flaw, the Framers promptly
adopted the Seventh Amendment. Ever since, “every encroachment
upon [the jury trial right] has been watched with great jealousy.”
Par-
sons Bedford
,
(2) The Seventh Amendment guarantees that in “[s]uits at com- mon law . . . the right of trial by jury shall be preserved.” The right
Syllabus
itself is not limited to the “common-law forms of action recognized”
when the Seventh Amendment was ratified.
Curtis
v.
Loether
, 415
U. S. 189, 193. Rather, it “embrace[s] all suits which are not of equity
or admiralty jurisdiction, whatever may be the peculiar form which
they may assume.”
Parsons
,
The close relationship between federal securities fraud and common
law fraud confirms that conclusion. Both target the same basic con-
duct: misrepresenting or concealing material facts. By using “fraud”
and other common law terms of art when it drafted the federal securi-
ties laws, Congress incorporated common law fraud prohibitions into
those laws. This Court therefore often considers common law fraud
principles when interpreting federal securities law. See,
e.g., Dura
Pharmaceuticals, 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 deci- sion to an agency without a jury, consistent with the Seventh Amendment. For the reasons below, the exception does not apply. Pp. 13–27.
(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 & Im-
provement Co.
,
Syllabus
the bounds of federal jurisdiction,” an Article III court must decide it,
with a jury if the Seventh Amendment applies.
Stern
v.
Marshall
, 564
U. S. 462, 484. On that basis, this Court has repeatedly explained that
matters concerning private rights may not be removed from Article III
courts. See,
e.g., Murray’s Lessee,
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 cate-
gories that have been recognized as falling within the exception in-
clude matters concerning: the collection of revenue; aspects of customs
law; immigration law; relations with Indian tribes; the administration
of public lands; and the granting of public benefits. The Court’s opin-
ions governing 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 Article III
courts.”
Northern Pipeline Constr. Co. Marathon Pipe Line Co.
, 458
U. S. 50, 69, n. 23 (plurality opinion). Pp. 13–18.
(2) In
Granfinanciera
, 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 adjudi-
cate” a statutory “fraud claim.”
Syllabus
common law fraud, employ the same terms of art, and operate pursu- ant to similar legal principles. In short, this action involves a “mat- ter[ ] of private rather than public right.” Granfinanciera , 492 U. S., at 56. Pp. 20–21. (4) The SEC claims that the public rights exception applies be-
cause Congress created “new statutory obligations, impose[d] civil pen-
alties for their violation, and then commit[ted] to an administrative
agency the function of deciding whether a violation ha[d] in fact oc-
curred.” Brief for Petitioner 21.
Granfinanciera
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 administrative tribunal.”
(5) The Court’s opinion in
Atlas Roofing Co. Occupational Safety
and Health Review Comm’n
,
The Court does not reach the remaining issues in this case.
R OBERTS , C. J., delivered the opinion of the Court, in which T HOMAS , A LITO , G ORSUCH , K AVANAUGH , and B ARRETT , JJ., joined. G ORSUCH , J., filed a concurring opinion, in which T HOMAS , J., joined. S , J., filed a dissenting opinion, in which K AGAN and J ACKSON , JJ., joined.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers 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. SUPREME COURT OF THE UNITED STATES
_________________ No. 22–859 _________________ SECURITIES AND EXCHANGE COMMISSION, PETITIONER GEORGE R. JARKESY, J R .,
ET AL .
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 27, 2024]
C HIEF J USTICE R OBERTS delivered the opinion of the Court.
In 2013, the Securities and Exchange Commission initi- ated 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 de- fend 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 Se- curities Exchange Act of 1934, and the Investment Advisers Act of 1940. 48 Stat. 74, 15 U. S. C. §§77a et seq .; 48 Stat.
Opinion of the Court
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 over-
lap. 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 ma- terial fact. 15 U. S. C. §77q(a)(2). As implemented by Rule 10b–5, Section 10(b) prohibits using “any device, scheme, or artifice to defraud,” making “untrue statement[s] of . . . ma- terial fact,” causing certain material omissions, and “en- gag[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 finally, 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 file a suit in federal court. See §§77t, 78u, 80b–9. The SEC’s choice of forum dictates two aspects of the litigation: The procedural protections enjoyed by the defendant, and the remedies available to the SEC.
Opinion of the Court
Procedurally, these forums differ in who presides and makes legal determinations, what evidentiary and discov- ery rules apply, and who finds facts. Most pertinently, in federal court a jury finds 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 finds facts while its Division of Enforcement pros- ecutes the case. The Commission may also delegate its role as judge and factfinder to one of its members or to an ad- ministrative 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 in- admissible in federal court. See §§201.320, 201.326.
When a Commission member or an ALJ presides, the full
Commission can review that official’s findings 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 findings as “conclu-
sive” if sufficiently supported by the record,
e.g.
, §78y(a)(4);
see
Richardson Perales
,
The remedy at issue in this case, civil penalties, also orig- inally depended upon the forum chosen by the SEC. Except in cases against registered entities, the SEC could obtain civil penalties only in federal court. See Insider Trading SEC
Opinion of the Court
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 (codified 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 en-
forcement tools. These penalties consist of fines 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 inves-
tor has actually suffered financial loss. See v.
Blavin
,
B
Shortly after passage of the Dodd-Frank Act, the SEC be- gan 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, financial 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 in- vestment strategies that Jarkesy and Patriot28 employed, (2) by lying about the identity of the funds’ auditor and prime broker, and (3) by inflating the funds’ claimed value
Opinion of the Court
so that Jarkesy and Patriot28 could collect larger manage- ment 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 Ad- visers 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 final order in 2020. Id ., at 71a–154a. The final order levied a civil pen- alty of $300,000 against Jarkesy and Patriot28, directed them to cease and desist committing or causing violations of the antifraud provisions, ordered Patriot28 to disgorge earnings, and prohibited Jarkesy from participating in the securities industry 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 final order.
Id
., at 449–450. Applying a two-part test from
Granfinan-
ciera, S. A. Nordberg
,
Opinion of the Court
where a jury could have found the facts pertinent to the de- fendants’ fraud liability. Based on this Seventh Amend- ment violation, the panel vacated the final order. Id ., at 459.
It also identified two further constitutional problems.
First, it determined that Congress had violated the non-
delegation doctrine by authorizing the SEC, without ade-
quate guidance, to choose whether to litigate this action in
an Article 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
powers. 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,
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 securi-
ties fraud. Our analysis of this question follows the ap-
proach set forth in
Granfinanciera
and
Tull
v.
United
States
,
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 7
Opinion of the Court
any of the distinctive areas involving governmental prerog- atives where the Court has concluded that a matter may be resolved outside of an Article III court, without a jury. The 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 is- sues.
A
We first explain why this action implicates the Seventh Amendment.
The right to trial by jury is “of such importance and occu- pies so firm 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 admi- ralty, and chancery courts, Americans condemned Parlia- ment for “subvert[ing] the rights and liberties of the colo- nists.” Resolutions 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 gath- ered at the First Continental Congress demanded that Par- liament respect the “great and inestimable privilege of be- ing 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 ju- ries, the Founders cited the practice as a justification for *13 8
Opinion of the Court
severing our ties to England. See Declaration of Independ- ence ¶20; see generally Erlinger v. United States , 602 U. S. ___, ___–___ (2024).
In the Revolution’s aftermath, perhaps the “most suc-
cess[ful]” critique leveled against the proposed Constitution
was its “want of a . . . provision for the trial by jury in civil
cases.” The Federalist No. 83, p. 495 (C. Rossiter ed. 1961)
(A. Hamilton) (emphasis deleted). The Framers promptly
adopted the Seventh Amendment to fix that flaw. In so do-
ing, they “embedded” the right in the Constitution, securing
it “against the passing demands of expediency or conven-
ience.”
Reid
v.
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 rat-
ified.
Curtis Loether
,
The Seventh Amendment extends to a particular statu-
tory claim if the claim is “legal in nature.”
Granfinanciera
,
Opinion of the Court
court. The developer responded by invoking his right to a jury trial. Although 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 rele- vant. “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 directed courts to consider the cause of action and the remedy 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 remedy is legal is if it is designed to punish or deter the wrongdoer, or, on the other hand, solely to “restore the sta- tus quo.” Tull , 481 U. S., at 422. As we have previously explained, “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be ex- plained as also serving either retributive or deterrent pur- poses, is punishment.” Austin v. United States , 509 U. S. 602, 610 (1993) (internal quotation marks omitted). And while courts of equity could order a defendant to return un- justly obtained funds, only courts of law issued monetary penalties to “punish culpable individuals.” Tull , 481 U. S., at 422. Applying these principles, we have recognized that “civil penalt[ies are] a type of remedy at common law that could only be enforced in courts of law.” Ibid . The same is true here.
To start, the Securities Exchange Act and the Investment
Opinion of the Court
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, accounting for any restitution made, (4) whether the de- fendant had previously violated securities laws or regula- tions, or had previously committed certain crimes, (5) the need for deterrence, and (6) other “matters as justice may require.” §§78u–2(c), 80b–3(i)(3). Of these, several concern culpability, deterrence, and recidivism. Because they tie the availability of civil penalties to the perceived need to punish the defendant rather than to restore the victim, such considerations 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 first 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 “significant risk” of the latter, the defendant is subject to a third tier penalty. Each successive tier author- izes a larger monetary sanction. See ibid.
Like the considerations that determine the availability of
civil penalties in the first place, the criteria that divide
these tiers are also legal in nature. Each tier conditions the
available penalty on the culpability of the defendant and
the need for deterrence, not the size of the harm that must
be remedied. 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 “res-
tor[ing] the status quo,”
Tull
,
Opinion of the Court
show that these civil penalties are designed to be punitive.
The final 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 compen-
sate injured 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 definition does not “restore
the status quo” and can make no pretense of being equita-
ble.
Tull
,
In sum, the civil penalties in this case are designed to punish 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 confirms that conclusion. Both
target the same basic conduct: misrepresenting or conceal-
ing 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
Restatement (Third) of Torts: Liability for Economic Harm,
§§9, 13 (2018); see also,
e.g.
,
Pauwels
v.
Deloitte LLP
, 83
F. 4th 171, 189–190 (CA2 2023) (identifying the elements of
common law fraud under New York law);
Conroy Regents
of Univ. of Cal.
, 45 Cal. 4th 1244, 1254–1255, 203 P. 3d
1127, 1135 (2009) (same for California law);
Wesdem, L.L.C.
v.
Illinois Tool Works, Inc.
,
Opinion of the Court
suit in rulemakings. Rule 10b–5, for example, prohibits “any device, scheme, or artifice to defraud,” and “engag[ing] in any act . . . which operates or would operate as a fraud.” 17 CFR §§240.10b–5(a), (c).
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
, 504 F. 3d
1046, 1050 (CA9 2007). “[W]hen Congress transplants a
common-law term, the old soil comes with it.”
United States
v.
Hansen
, 599 U. S. 762, 778 (2023) (internal quotation
marks omitted). Our precedents therefore often consider
common law fraud principles when interpreting federal se-
curities law.
E
.
g
.,
Dura Pharmaceuticals, Inc.
v.
Broudo
,
That is not to say that federal securities fraud and com-
mon law fraud are identical. In some respects, federal se-
curities fraud is narrower. For example, federal securities
law does not “convert every common-law fraud that hap-
pens to involve securities into a violation.”
SEC
v.
Zandford
,
Opinion of the Court
federal securities fraud is broader. For example, federal se-
curities fraud employs the burden of proof typical in civil
cases, while its common law analogue traditionally used a
more stringent standard. See
Herman & MacLean Hud-
dleston
, 459 U. S. 375, 387–390 (1983). Courts have also
not typically interpreted federal securities fraud to require
a showing of harm to be actionable by the SEC. See,
e.g.
,
Blavin
,
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, con- sistent 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 Article 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 Lessee
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
v.
Marshall
,
Opinion of the Court
the United States’ ” cannot be shared with the other branches. Id ., at 483 (quoting United States v. Nixon , 418 U. S. 683, 704 (1974); alteration in original). Or, as Alex- ander Hamilton wrote in The Federalist Papers, “ ‘there is no liberty if the power of judging be not separated from the legislative and executive powers.’ ” The Federalist No. 78, at 466 (quoting 1 Montesquieu, The Spirit of Laws 181 (10th ed. 1773)).
On that basis, we have repeatedly explained that matters
concerning private rights may not be removed from Article
III courts.
Murray’s Lessee
,
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 deter-
mined exclusively by [the executive and legislative]
branches,”
id.
, at 493 (internal quotation marks omitted),
even when they were “presented in such form that the judi-
cial power [wa]s capable of acting on them,”
Murray’s Les-
see
,
The decision that first 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. 18 How., at 274–275.
Opinion of the Court
Pursuant to the warrant, the Government eventually seized and sold a plot of the collector’s land. Id. , at 274. Plaintiffs later attacked the purchaser’s title, arguing that the initial seizure was void because the Government had audited the collector’s account and issued the warrant itself without ju- dicial 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 officers 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 “en- force payment of balances due from receivers of the reve- nue.” Id ., at 278; see id ., at 281. In light of this historical practice, the Government could issue a valid warrant with- out intruding 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.
Stranahan
,
Opinion of the Court
339–340. 1
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, subject to a statutory cap, to produce fair competition. If the President was “satisfied 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 field and had exercised ——————
[1] The dissent asserts that
Oceanic Steam Navigation
stands for the
proposition that the public rights exception applies to any exercise of
power granted to Congress.
Post
, at 10–11 (opinion of S , J). It
must be reading from a different case than we are.
Oceanic Steam Nav-
igation
expressly confines its analysis to the exercise of Congress’s power
over
foreign
commerce.
Opinion of the Court
it, we explained that the assessment of tariffs did not im- plicate Article III. Id ., at 458, 460–461.
This Court has since held that certain other historic cat-
egories of adjudications fall within the exception, including
relations with Indian tribes, see
United States
v.
Jicarilla
Apache Nation
,
Our opinions governing the public rights exception have
not always spoken in precise terms. This is an “area of fre-
quently arcane distinctions and confusing precedents.”
Thomas
v.
Union Carbide Agricultural Products Co.
, 473
U. S. 568, 583 (1985) (internal quotation marks omitted).
The Court “has not ‘definitively explained’ the distinction
between public and private rights,” and we do not claim to
do so today.
Oil States Energy Services, LLC
v.
Greene’s
Energy Group, LLC
,
——————
[2] The dissent would brush away these careful distinctions and unfurl a new rule: that whenever Congress passes a statute “entitl[ing] the Gov- ernment to civil penalties,” the defendant’s right to a jury and a neutral Article III adjudicator disappears. See post , at 2 (opinion of S , J.). It bases this rule not in the constitutional text (where it would find
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
,
support), nor in a careful, category-by-category analysis of underlying le-
gal principles of the sort performed by
Murray’s Lessee
(which it does not
attempt), nor even in a case-specific 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 Roofing Co.
v.
Occupational Safety and Health Review
Comm’n,
Opinion of the Court
Article III.”
Stern
,
This is not the first 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 Granfinanciera , and the principles identified in that case largely resolve this one.
Granfinanciera
involved a statutory action for fraudulent
conveyance. As codified 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
known at common law.
The issue in
Granfinanciera
was whether this designa-
tion was permissible under the public rights exception.
Ibid
. We explained that it was not. Although Congress had
assigned 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.’ ”
Opinion of the Court
(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 “quin- tessentially 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 or- dered 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 seek payment before higher priority claims exhaust the estate, and an orderly disposition of a bankruptcy is impos- sible. Other claims, though, can be brought in standalone suits, because they are neither prioritized nor subordinated to related 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 author- ized jury trials for certain bankruptcy matters, demonstrat- ing 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 in- separable from the bankruptcy process. Id ., at 54, 56. The public rights exception therefore did not apply, and a jury was required.
Granfinanciera effectively decides this case. Even when an action “originate[s] in a newly fashioned regulatory 21
Opinion of the Court
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
,
The foregoing from
Granfinanciera
already does away
with much of the SEC’s argument. Congress cannot “con-
jure away the Seventh Amendment by mandating that tra-
ditional legal claims be . . . taken to an administrative tri-
bunal.”
Opinion of the Court
claim, its statutory origins are not dispositive. See id ., at 52, 56.
The SEC’s sole remaining basis for distinguishing Gran- financiera 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 “crit- ical distinction” in the public rights analysis is “enforce- ment by the executive”); id. , at 26 (identifying as “the con- stitutionally 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 . . . sufficient” 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 in- dividuals interacting in a pre-existing market. To do so, the 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 ad- judicated in Article III courts.
The principal case on which the SEC and the dissent rely
is
Atlas Roofing Co. Occupational Safety and Health Re-
view Commission
,
Opinion of the Court
tribunals.
The litigation in Atlas Roofing 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
Granfinanciera
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 stand-
ards 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
,
Opinion of the Court
claims that traced their ancestry to the common law. Ra- ther, Congress stated that it intended the agency to “de- velop[ ] innovative methods, techniques, and approaches for dealing with occupational safety and health problems.” 29 U. S. C. §651(b)(5) (1976 ed.). In both concept and execu- tion, the Act was self-consciously novel.
Facing enforcement actions, two employers alleged that
the adjudicatory authority of the OSHRC violated the Sev-
enth Amendment. See
Atlas Roofing
,
The cases that
Atlas Roofing
relied upon did not extend
the public rights exception to “traditional legal claims.”
Granfinanciera
,
Opinion of the Court
when “courts of law supplied a cause of action and an ade- quate remedy to the litigant”).
Atlas Roofing
concluded that Congress could assign the
OSH Act adjudications to an agency because the claims
were “unknown to the common law.”
The reasoning of Atlas Roofing cannot support any broader rule. The dissent chants “ Atlas Roofing ” like a mantra, but no matter how many times it repeats those words, it cannot give Atlas Roofing substance that it lacks. —————— [4] Reading the dissent, one might also think that Atlas Roofing is among this Court’s most celebrated cases. As the concurrence shows, Atlas Roof- ing represents a departure from our legal traditions. See post , at 12–20 (opinion of G ORSUCH , J.).
This view is also reflected in the scholarship. Commentators writing comprehensively on Article III and agency adjudication have often simply ignored the case. See, e.g ., R. Fallon, Of Legislative Courts, Ad- ministrative Agencies, and Article III, 101 Harv. L. Rev. 915 (1988) (no citation to Atlas Roofing ); J. Harrison, Public Rights, Private Privileges, and Article III, 54 Ga. L. Rev. 143 (2019) (same); W. Baude, Adjudication Outside Article 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 Roofing did “not recognize or [mis]understood” “careful distinctions developed by . . . earlier judges”); G. Young, Federal Courts & Federal Rights, 45 Brooklyn L. Rev. 1145, 1153 (1979) (“The Atlas Court . . . failed to offer an adequate justification for its interpretation of the sev-
Opinion of the Court
Even as
Atlas Roofing
invoked the public rights exception,
the definition 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 Roofing
, this Court clarified in
Tull
that the
Seventh Amendment does apply to novel statutory regimes,
so long as the claims are akin to common law claims. See
For its part, the dissent also seems to suggest that
Atlas
Roofing
establishes that the public rights exception applies
whenever a statute increases governmental efficiency.
Post
, at 15 (opinion of S , J.). Again, our prece-
dents foreclose this argument. As
Stern
explained, effects
like increasing efficiency and reducing public costs are not
enough to trigger the exception. See
enth amendment, either in terms of precedent or the language and his- tory of the amendment.”); M. Redish & D. La Fave, Seventh Amendment Right to Jury Trial in Non-Article III Proceedings: A Study in Dysfunc- tional Constitutional Theory, 4 Wm. & Mary Bill of Right J. 407, 436 (1995) (criticizing Atlas Roofing for failing to “provid[e] a principled basis upon which to determine the proper scope of congressional power to re- move the civil jury from federal adjudications”); V. Amar, Implementing an Historical Version of the Jury in an Age of Administrative Factfinding and Sentencing Guidelines, 47 S. Tex. L. Rev. 291, 298 (2005) (question- ing Atlas Roofing for “invert[ing] and turn[ing] on its head the Apprendi doctrine’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 Roofing 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
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 Amend- ment.
The novel claims in Atlas Roofing 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 Roofing
does not conflict 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 Con- gress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch. That is the very op- posite of the separation of powers that the Constitution de- mands. Jarkesy and Patriot28 are entitled to a jury trial in an Article III court. We do not reach the remaining consti- tutional issues and affirm the ruling of the Fifth Circuit on the Seventh Amendment ground alone.
The judgment of the Court of Appeals for the Fifth Circuit is affirmed, and the case is remanded for further proceed- ings consistent with this opinion.
It is so ordered.
G ORSUCH , J., concurring
SUPREME COURT OF THE UNITED STATES
_________________ No. 22–859 _________________ SECURITIES AND EXCHANGE COMMISSION, PETITIONER GEORGE R. JARKESY, J R .,
ET AL .
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 27, 2024]
J USTICE G ORSUCH , with whom J USTICE T HOMAS 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 Pro-
cess Clause of the Fifth Amendment to limit how the gov-
ernment 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 provisions
vindicate the Constitution’s promise of a “fair trial in a fair
tribunal.”
In re Murchison
,
I
In March 2013, the SEC’s Commissioners approved
G ORSUCH , J., concurring
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-Hear- ing Memorandum of Law in In re John Thomas Capital Management Group, LLC , Admin. Proc. File No. 3–15255, 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 3–4. 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 filed charges against Mr. Jarkesy.
There is little mystery why. The new law gave the SEC’s Commissioners—the same officials 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 first 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 mas- ter—the very agency tasked with prosecuting individuals like Mr. Jarkesy. This close relationship, as others have long recognized, can make it “extremely difficult, if not im- possible, for th[e ALJ] to convey the image of being an im- partial fact finder.” B. Segal, The Administrative Law 3
G ORSUCH , J., concurring
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.
Going in, then, the odds were stacked against Mr. Jarkesy. The numbers confirm as much: According to one report, during 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 discus- sions that he had found defendants liable in every contested case and never once “ ‘ruled against the agency’s enforce- ment division.’ ” Axon Enterprise, Inc. v. FTC , 598 U. S. 175, 213–214 (2023) (G ORSUCH , J., concurring in judg- ment).
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 sup-
ply in cases where a person’s life, liberty, or property is at
stake. After an agency files a civil complaint in court, a de-
fendant 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
flexibility, as well, to set deadlines for discovery and other
matters to meet the needs of the case. See Rule 16. And
——————
[1]
In many agencies, litigants are not even entitled to have ALJs, with
their modicum of protections, decide their cases. These agencies use “ad-
ministrative judges.” Some agencies can replace these administrative
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.
,
G ORSUCH , J., concurring
come trial, the Federal Rules of Evidence apply, meaning 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 con- tain material exculpatory evidence.” 17 CFR §201.230(b)(3). But the defendant enjoys no general right to discovery. Though ALJs enjoy the power to issue subpoe- nas on the request of litigants like Mr. Jarkesy, §201.232(a), they “often decline to issue [them] or choose to significantly narrow their scope,” G. Mark, SEC and CFTC Administrative Proceedings, 19 U. Pa. J. Const. L. 45, 68 (2016). Oral depositions are capped at five, 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 hearsay, do not apply with the same ri- gor they do in court. §201.235(a)(5); see §201.230. For that reason, live testimony often gives way to “investigative tes- timony”—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? Accom- panying its charges, the SEC disclosed 700 gigabytes of data—equivalent to between 15 and 25 million pages of in- formation—it had collected during its investigation. App. to Pet. for Cert. 164a; Complaint in Jarkesy v. U. S. SEC , No. 1:14–cv–00114 (DDC, 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 prepare 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
G ORSUCH , J., concurring
six months to file [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 eventu- ally arrived seven months after the hearing, the ALJ agreed with the SEC on every charge. See App. to Pet. for Cert. 155a–156a, 212a.
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 defendant.
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 find a jury there,
only a judge who must follow the agency’s findings if they
are supported by “ ‘more than a mere scintilla’ ” of evidence.
Biestek Berryhill
,
Mr. Jarkesy filed 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 responsible for pressing the action against Mr. Jarkesy. While his ap- peal was pending, employees in that division—including an “ ‘Enforcement Supervisor’ ” in the regional office prosecut- ing Mr. Jarkesy—accessed confidential memos by the Com- missioners’ advisors about his appeal. See SEC, Second Commission Statement Relating to Certain Administrative Adjudications 3 (June 2, 2023).
II A If administrative proceedings like Mr. Jarkesy’s seem a
G ORSUCH , J., concurring
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 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 rivers and their immediate shores.” C. Ubbelohde, The Vice-Admiralty Courts and the American Revolution 19 (1960) (Ubbelohde). And the proceedings they used ac- corded more with civil law traditions than common law ones. Among other things, this meant officials could try cases against colonists without a jury. Id. , at 21.
Confined to admiralty disputes, perhaps the lack of a jury
would have proven unexceptional (as juries were not usu-
ally required in such cases then, nor are they today). See,
e.g.
,
Lewis Lewis & Clark Marine, Inc.
,
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,
G ORSUCH , J., concurring
colonial juries “ ‘were not to be trusted.’ ” D. Lovejoy, Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1764–1776, 16 Wm. & Mary Q. 459, 468 (1959). Even violations that did not implicate the jury right nor- mally 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. But by expanding the reach of vice-admiralty jurisdiction in the Colonies, Parliament denied similar protections to Ameri- cans. See Erlinger v. United States , 602 U. S. ___, ___ (2024) (slip op., at 5).
Vice-admiralty court judges also lacked independence.
While judges in England since the end of the seventeenth
century generally enjoyed the protection of tenure during
good behavior, colonial judges usually served at the pleas-
ure of the royal administration. See
United States
v.
Will
,
Like the modern SEC, British colonial officials were not required to bring many of their cases before the vice-admi- ralty courts. Often, Parliament gave those officials the op- tion to proceed in either the ordinary common-law courts or the vice-admiralty courts. Unsurprisingly, though, they sought to file 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 “ex- tend[ed] the jurisdiction of Courts of Admiralty,” com- plained how colonial judges were “dependent on the
G ORSUCH , J., concurring
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, admonishing the King for “ma[king] Judges dependent on his Will alone,” ¶11, and “[f]or depriving [the colonists] in many cases, of the benefits of Trial by Jury,” ¶20. By that point, however, the “musket fire at Lexington and Concord . . . signaled the end not only of the vice-admiralty courts, but of all British rule in Amer- ica.” 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
G ORSUCH , J., concurring
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 ar- bitrary proceedings.” Letter from a Federal Farmer (Jan. 18, 1788), in id ., at 320 (Federal Farmer 15). The partici- pation 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 government, the jury may check them.” Ibid. As originally composed, 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? Federal Farmer 15, at 322. If so, asked another, “what satisfaction can we expect from a lordly court of jus- tice, always ready to protect the officers of government against the weak and helpless citizen”? Essay of a Demo- cratic Federalist (Oct. 17, 1787), in 3 Complete Anti-Feder- alist 61.
The answer to these concerns was the Bill of Rights.
Er-
linger
,
G ORSUCH , J., concurring
generation anticipated the possibility Congress would in- troduce 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 8–9. In this way, the Seventh Amend- ment seeks to ensure there will be no juryless vice-admiralty courts in the United States.
The Fifth Amendment’s Due Process Clause addressed
remaining concerns about the processes that would attend
trials before independent judges and juries. It provided
that the government may not deprive anyone of “life, lib-
erty, or property, without due process of law.” As originally
understood, this provision prohibited the government from
“depriv[ing] a person of those rights without affording him
the benefit 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 Consti- tution 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, oppor- tunity 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
G ORSUCH , J., concurring
as “a restraint on the legislative” branch, preventing Con- gress 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 something akin to a traditional fraud claim: At the found- ing, both kinds of actions were tried in common-law courts. See ante , at 9–13 (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 v. 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 ju- dicial cognizance” and handing it over to the Executive Branch for an in-house trial. Murray’s Lessee , 18 How., at 284; see supra , at 7–8.
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
G ORSUCH , J., concurring
9; supra , at 8–10.
Third
, were there any doubt, the Due Process Clause con-
firms 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
“depriv[e]” Mr. Jarkesy of “property,” Amdt. 5, due process
demands nothing less than “the process and proceedings of
the common law,” 3 Story §1783, at 661. That means the
regular course of trial proceedings with their usual protec-
tions, see
Murray’s Lessee
,
III A The government resists these conclusions. As the govern- ment 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 inde- pendent trial judge consistent with traditional judicial pro- cesses. That is, on the government’s account, not only does the Seventh Amendment fall away; so does the usual oper- ation 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 commit 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
G ORSUCH , J., concurring
“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 19–21. 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 first instance. Ante , at 6, 14–15. 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 16–17. Instead, public rights are a narrow class defined and limited by history. As the Court explains, that class has traditionally included the collection of revenue, customs enforcement, immigration, and the grant of public benefits. Ante , at 15–17.
How did these matters find themselves categorized as
public 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.”
G ORSUCH , J., concurring
Whatever their roots, traditionally recognized public
rights have at least one feature in common: a serious and
unbroken historical pedigree. See
Culley Marshall
, 601
U. S. 377, 397–398 (2024) (G ORSUCH , J., concurring);
ante
,
at 14–17. For good reason. If the Article III “judicial
Power” encompasses “the stuff of the traditional actions at
common law tried by the courts of Westminster in 1789,”
ante
, at 14 (internal quotation marks omitted), it follows
that matters traditionally adjudicated outside those courts
might
not
fall within Article III’s ambit. See
Stern
, 564
U. S., at 504–505 (Scalia, J., concurring) (“[A]n Article III
judge is required in
all
federal adjudications, unless there
is a firmly established historical practice to the contrary”).
So too with the Due Process Clause. If that clause sets cus-
tomary common-law 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 Lessee
,
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 18, we
look for some “deeply rooted” tradition of nonjudicial adju-
dication before permitting a case to be tried in a different
forum under different procedures,
Culley
,
G ORSUCH , J., concurring
ante , at 14–15. But when it comes to the kind of civil-pen- alty suit before us, that same history points in the opposite direction, suggesting actions of this sort belong before an independent judge, a jury, and decided in a trial that ac- cords with traditional judicial procedures. Ante , at 9–13; supra , at 11–12. Just as SEC practices themselves largely reflected as recently as 2010.
B
If all that’s so, why might the government feel comforta- ble invoking the public rights exception? To be fair, much of it may have to do with this Court. Some of our past deci- sions have allowed the government to chip away at the courts’ historically exclusive role in adjudicating private rights—and juries’ accompanying role in that adjudication. This process began, of all places, in an admiralty case.
In
Crowell
v.
Benson
,
G ORSUCH , J., concurring
To get there took a dash of fiction and a pinch of surmise. From time to time, the Court observed, judges appoint their own special “masters and commissioners” to prepare re- ports 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 fiction that Executive Branch officials might similarly act as assistants or adjuncts to Article III courts. And because judges often adopt the proposed find- ings of their masters and commissioners, the Court sur- mised, Article III posed no bar to Congress taking a further step and requiring judges to treat the findings of Executive Branch officials as essentially “final.” 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- tinuous, expert, and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to ex- amination and determination by an administrative agency specially 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 ex-
ception. 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
G ORSUCH , J., concurring
the power to assess civil penalties, advised a committee overseen by Attorney General (soon-to-be Justice) Robert H. Jackson, “the aggrieved person” should at least “be per- mitted review de novo by a Federal district court.” Final Report 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 judg- ment, so that the whole proceeding from end to end is one to give effect to a complaint.” Report of the Special Com- mittee on Administrative Law, 63 Ann. Rep. 331, 351 (1938).
The high-water mark of the movement toward agency ad-
judication may have come in 1977 in
Atlas Roofing 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 Roofing
,
It did not take long for this Court to realize as much. Just
12 years later, in
Granfinanciera, S. A.
v.
Nordberg
, 492
U. S. 33 (1989), this Court cabined
Atlas Roofing
so nar-
rowly that the author of
Atlas Roofing
complained that the
Court had “overrul[ed]” it.
G ORSUCH , J., concurring
treatment as a public right, for example, the Court in
Gran-
financieria
read
Atlas Roofing
as having “left the term ‘pub-
lic rights’ undefined.”
Yet, even after the Court moved away from
Atlas Roofing
,
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.”
Granfinanciera
, 492
U. S., at 55, n. 10. We have changed course and tried our
hand at a five-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
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 Granfi- nancieria , the Court rejects the government’s overbroad reading of Atlas Roofing and recognizes that the kind of atextual and ahistorical (not to mention confusing) tests it inspired do little more than ask policy questions the Con- stitution settled long ago. Yes, a limited category of public rights were originally and even long before understood to
G ORSUCH , J., concurring
be susceptible to resolution without a court, jury, or the other usual protections an Article III court affords. But out- side of those limited areas, we have no license to deprive the American people of their constitutional right to an in- dependent judge, to a jury of their peers, or to the proce- dural protections at trial that due process normally de- mands. 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 “reaffirm[ed],” many
times and “emphatically[,] that the First Amendment does
not permit the State to sacrifice speech for efficiency.”
Riley
v.
National Federation of Blind of N. C., Inc.
,
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
,
G ORSUCH , J., concurring
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 ac- tual administration of justice is dependent upon caprice, or favour, [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 22 (opinion of , J.). But, thanks to public rights doctrine, the dissent insists, the Constitution imposes no limits on the government’s power to seek civil penalties “outside the reg- ular courts of law where there are no juries.” Post , at 2. In that field, the Constitution falls silent. The dissent does not even attempt to deploy any of the contrived balancing tests that emerged in Atlas Roofing ’s aftermath to rein in the government’s power. But where in Article III, the Seventh Amendment, and due process can the dissent find 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
G ORSUCH , J., concurring
12 (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 un- touched. To start, the dissent lingers briefly on Murray’s Lessee —but not long enough to explain the opinion’s con- ception of Article III, due process, or the extended historical inquiry that led the Court to conclude the collection of rev- enue concerned a public right. See post , at 9–10; supra , at 8, 10–14.
The 19th century behind it (for it does not trouble with
the founding era), the dissent turns to
Oceanic Steam Nav.
Co. Stranahan
,
Really, one has to wonder: If the public rights exception is as broad and unqualified as the dissent asserts, why did our predecessors bother to discuss history or Congress’s pe- culiar 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 ca-
G ORSUCH , J., concurring
pacity”? Post , at 4. The answer, of course, is that the Con- stitution has never countenanced the dissent’s notion that the Executive is free to reassign virtually any civil case in which it is a party to its own tribunals where its own em- ployees 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 governmen- tal power. The dissenters have recognized that a “lack of standardized procedural safeguards” can leave government enforcement schemes “vulnerable to abuse” and individuals subject to coercive “pressure from unchecked prosecutors.” Culley , 601 U. S., at 405, 407 (S OTOMAYOR , J., joined by K AGAN and J ACKSON , JJ., dissenting). They have con- tended that the Judiciary has an affirmative obligation to supply “meaningful remedies,” trials before judges and ju- ries included, even when “Congress or the Executive has [already] created a remedial process.” Egbert Boule , 596 U. S. 482, 524–525 (2022) (S , J., joined by, inter alios , K AGAN , J., dissenting) (internal quotation marks omitted; 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 gov- ernment.” United States v. Haymond , 588 U. S. 634, 637 (2019) (plurality opinion).
The dissent’s conception of public rights is so unqualified that it refuses to commit itself on the question whether even muted forms of judicial review—such as asking executive tribunals 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 conception of public rights. See Part I, supra ; post , at 8, n. 4. Gone, too, is any role for the jury—for why would the 23
G ORSUCH , J., concurring
government 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 de- clares that “ ‘[t]he public-rights doctrine does not extend to . . . criminal matters.’ ” Post , at 27, n. 9. But the dissent does not (and cannot) explain how that fits 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 Gov- ernment in its sovereign capacity,” post , at 28, what could possibly better fit the description than the enforcement of new criminal laws? See Shinn v. Martinez Ramirez , 596 U. S. 366, 376 (2022) (“The power to convict and punish criminals lies at the heart of the States’ residuary and invi- olable sovereignty” (internal quotation marks omitted)).
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 flesh out the
scope of the public rights exception.
Post
, at 18. It would
be so much simpler, the dissent says, to adopt its rule per-
mitting 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
,
[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 27, 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 5. And under that logic, there is no apparent reason why the government could not evade Article III’s jury-trial right just as easily, simply by choosing to route criminal prosecutions through execu- tive agencies.
G ORSUCH , J., concurring
many other contexts where we seek to honor the Constitu-
tion’s demands—including, notably, when we seek to ascer-
tain the scope of the
criminal
jury-trial right and the de-
fendant’s attendant right to confront his accusers. See
Erlinger
,
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 “flexible,”
defies “technical conception,” lacks “fixed content,” and will
“not always yield the same result” even when applied in
similar circumstances.
Culley
,
Failing all else, the dissent retreats to Atlas Roofing . 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 15, and engaging in “a power grab,” post , at 37, by failing to give Atlas Roofing its broadest possible con- struction. It’s a “disconcerting” accusation indeed, post , at 36, and a misdirected one at that. Construed as broadly as the dissent proposes, Atlas Roofing ’s view of public rights
G ORSUCH , J., concurring
stands as an outlier in our jurisprudence—with no appar- ent support in original meaning, at odds with prior prece- dent, and inconsistent with later precedent as well. See ante , at 25, n. 4; Part III–B, supra . Meanwhile, the Court’s alternative construction of Altas Roofing fits far more com- fortably with all those legal sources. In that respect, the majority’s approach is of a piece with Granfinanciera ’s sim- ilar approach 25 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 con- forms it to the mainstream of our precedents. Groff v. DeJoy , 600 U. S. 447, 474 (2023) (S , J., concur- ring). As the dissenters have previously acknowledged, that course is neither unusual nor at odds with stare decisis . See id ., at 474–475; see also Brown v. Davenport , 596 U. S. 118, 141 (2022) (“We neither expect nor hope that our suc- cessors will comb these pages for stray comments and stretch them beyond their context—all to justify an outcome inconsistent with this Court’s reasoning and judgments”).
Were there any doubt about the propriety of the Court’s treatment of Atlas Roofing , consider one more feature of the alternative the dissent proposes. In defending the broadest possible construction of Atlas Roofing ’s public rights discus- sion, the dissent necessarily endorses that decision’s excep- tionally narrow conception of the Seventh Amendment. See post , at 6. After all, as public rights expand, so too the jury- trial right must contract. Yet Atlas Roofing ’s discussion of the jury-trial right, no less than its discussion of public rights, is difficult to square with precedent and original 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.”
Par-
sons
,
G ORSUCH , J., concurring
until well into the 1970s, noting, for example, that “the ap-
plicability of the constitutional right to jury trial in actions
enforcing statutory rights” was “a matter too obvious to be
doubted.”
Curtis
v.
Loether
,
Atlas Roofing
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.”
Almost immediately, however, the Court rejected
Atlas
Roofing
’s analysis, not just with respect to public rights doc-
trine but the Seventh Amendment, too. Returning to our
mainstream precedents, the Court reaffirmed the applica-
bility of the Seventh Amendment to new causes of action,
first in
Tull
v.
United States
,
Today, the Court respects and follows this longstanding
G ORSUCH , J., concurring
message in our Seventh Amendment precedents. The dis- sent chooses another path entirely—adopting a reading of Atlas Roofing 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 noth- ing to do with respect for precedent but much more to do with a “power grab”: Holding the government to the Con- stitution’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 37. All of which, at bottom, amounts to little more than a complaint with the Constitution’s revolutionary promise of popular oversight of government officials—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
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
without a jury, without an independent judge, and under
procedures foreign to our courts—certainly contains no
such limits. That is why the Constitution built “high walls
and clear distinctions” to safeguard individual liberty.
Plaut Spendthrift Farm, Inc.
,
G ORSUCH , J., concurring
Jarkesy. And it is free to pursue them exactly as it had always done until 2010: In a court, before a judge, and with a jury. With these observations, I am pleased to concur.
S OTOMAYOR , J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________ No. 22–859 _________________ SECURITIES AND EXCHANGE COMMISSION, PETITIONER GEORGE R. JARKESY, J R .,
ET AL .
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT [June 27, 2024] J USTICE , with whom J USTICE K AGAN and J USTICE J ACKSON join, dissenting.
Throughout our Nation’s history, Congress has author-
ized agency adjudicators to find violations of statutory obli-
gations 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
Government to be tried before a jury in federal district
court. Congress can instead assign them to an agency for
initial adjudication, subject to judicial review. This Court
has blessed that practice repeatedly, declaring it “the ‘set-
tled judicial construction’ ” all along; indeed, “ ‘from the be-
ginning.’ ”
Atlas Roofing Co.
v.
Occupational Safety and
Health Review Comm’n
,
Today, for the very first time, this Court holds that Con- gress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the , J., dissenting Government in its sovereign capacity, also known as a pub- lic right. According to the majority, the Constitution re- quires the Government to seek civil penalties for federal- securities fraud before a jury in federal court. The nature of the remedy is, in the majority’s view, virtually disposi- tive. That is plainly wrong. This Court has held, without exception, that Congress has broad latitude to create statu- tory obligations that entitle the Government to civil penal- ties, and then to assign their enforcement outside the regu- lar 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 mis- taken conclusion that Congress cannot assign a certain public-rights matter for initial adjudication to the Execu- tive because it must come only to the Judiciary.
The majority today upends longstanding precedent and the established practice of its coequal partners in our tri- partite 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 firm 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 filed suit in federal court or adjudicated the mat- 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 , J., dissenting Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940. Specifically, the SEC al- leged that respondents falsely told brokers and investors that: (1) a prominent accounting firm 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 capital in certain life-insurance policies. In real- ity, 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 ad- dition to misrepresenting the funds’ investment strategies, respondents allegedly overvalued the funds’ holdings to charge higher management 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 deter- mination. The Commission also denied respondents’ con- stitutional challenges to the order, including that the agency’s in-house adjudication violated respondents’ Sev- enth Amendment right to a jury trial in federal court. Ul- timately, the SEC ordered respondents to pay a civil pen- alty 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 Pa- triot28 to disgorge $685,000 in illicit profits.
Respondents filed a petition for review in the Fifth Cir-
cuit.
Court of Appeals held that the SEC violated respondents’ Seventh Amendment rights and thus vacated the SEC’s or- der. Id. , at 465–466.
The majority affirms 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 govern-
ment practice uniformly support the constitutionality of ad-
ministrative schemes like the SEC’s: agency adjudications
of statutory claims for civil penalties brought by the Gov-
ernment in its sovereign capacity. See Part II–B (
infra
, at
7–14). In assessing the constitutionality of such adjudica-
tions, the political branches’ “ ‘[l]ong settled and established
practice,’ ” which this Court has upheld and reaffirmed time
and again, is entitled to “ ‘great weight.’ ”
Chiafalo
v.
Wash-
ington
,
[1] As the majority notes, respondents also prevailed on two other con-
stitutional challenges in the Court of Appeals. See
ante,
at 6. 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.
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 7. That conclusion follows from both the text of the Con- stitution 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 Virginia
,
those facts like juries do in a courtroom.
Pernell
v.
Southall
Realty
,
Second, the requirement that the “ ‘[s]uit’ ” must be one
“ ‘at common law’ ” means that the claim at issue must be
“ ‘legal in nature.’ ”
Ante,
at 8. 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 contro-
versy exceeds $20.
Granfinanciera, S. A.
v.
Nordberg
, 492
U. S. 33, 53 (1989);
Atlas Roofing
,
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., at 345 (explaining that if non-Article III adjudication ——————
[2] Since the founding, Executive Branch officials have adjudicated cer-
tain matters, while others have required resolution in an Article III
court. An executive official properly vested with the authority to find
facts, apply the law to those facts, and impose the consequences pre-
scribed by law exercises executive power under Article II, not judicial
power under Article III. See
Arlington FCC
,
is permissible, then “ ‘the Seventh Amendment poses no in-
dependent bar to the adjudication of that action by a non-
jury factfinder’ ” (quoting
Granfinanciera
,
So, the critical issue in this type of case is whether Con- gress can assign a particular matter to a non-Article III factfinder.
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
assigned outside of Article III. They “ ‘do not require judi-
cial determination’ ” under the Constitution, even if they
“ ‘are susceptible of it.’ ”
Crowell Benson
,
The majority says that aspects of the public-rights doc- trine have been confusing. See ante, at 17. 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 con- tours 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.” Granfi- *68 8 v. , 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
departments.”
Crowell
, 285 U. S., at 50;
Oil States
, 584
U. S., at 335 (describing the “Court’s longstanding formula-
tion of the public-rights doctrine”); accord,
Granfinanciera
,
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 adjudi-
cate such violations and impose the appropriate penalty.
See
Atlas Roofing
,
nanciera, S. A.
v.
Nordberg
,
[4] Judicial review of these agency decisions allows Congress to avoid 9 OTOMAYOR , J., dissenting This Court has repeatedly emphasized these unifying prin- ciples 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
federal customs collector to produce public funds that the
Government determined the collector had unlawfully with-
held. See
any due process concerns that might arise from having executive officials
deprive someone of their property without review in an Article III court.
See
Atlas Roofing Co.
v.
Occupational Safety and Health Review
Comm’n
,
constitutional, the Court said, because “public rights” were at issue. Id ., at 284. In other words, the dispute arose be- tween the Government and the customs collector in connec- tion with the 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 endorsed that constitutional balance: Congress could decide whether to assign a public-rights dispute to the Ex- ecutive 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 depend upon the exertion of judicial power, either by civil or criminal process.” Id ., at 338. In words that could have , J., dissenting been written in response to today’s ruling, the Court ex- plained that such a “proposition magnifies the judicial to the detriment of all other departments of the Government, disregards many previous adjudications of this court, and ignores 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 neces- sary for executive officials “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 pursuant 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 depart- ment of the Government” or on the circumstances that might have “caused Congress to exert a specified power.” Id ., at 339–340.
By the time Stranahan was decided, Congress already routinely “impose[d] appropriate obligations and sanc- tion[ed] their enforcement by reasonable money penalties, giving to executive officers the power to enforce such penal- ties without the necessity of invoking the judicial power.” Id ., at 339. Far from limiting the public-rights doctrine to the particular context in Stranahan and prior cases, this Court has expressly rejected the notion that the public- rights doctrine is so confined. See infra , at 18–19. This Court has repeatedly approved Congress’s assignment of public rights to agencies in diverse areas of the law, reflect- ing Congress’s varied constitutional powers. 5 A nonexhaus- tive list includes “interstate and foreign commerce, taxa- tion, immigration, the public lands, public health, the ——————
[5] The majority’s fixation on this dissent’s discussion of Stranahan , see ante, at 16, n. 1, misses the fact that Stranahan exists within a long line of cases recognizing the diverse areas of the law comprising the public- rights doctrine.
12 , J., dissenting
facilities of the post office, pensions, and payments to vet-
erans,”
Crowell
, 285 U. S., at 51, and n. 13 (collecting
cases); see also,
e
.
g
.,
Helvering
v.
Mitchell
, 303 U. S. 391,
401–404 (1938) (administrative penalty for underpayment
of taxes);
NLRB
v.
Jones & Laughlin Steel Corp.
, 301 U. S.
1, 22–24, 48–49 (1937) (reinstatement of dismissed em-
ployee and backpay in adjudication of unfair-labor-prac-
tices claim under the National Labor Relations Act);
Phil-
lips
v.
Commissioner
, 283 U. S. 589, 591–592 (1931)
(deficiency assessments for unpaid taxes);
Lloyd Sabaudo
Societa Anonima per Azioni Elting
,
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 adminis- trative imposition of civil penalties or fines, this Court, without exception, has sustained the statutory scheme au- thorizing that enforcement outside of Article III.
A unanimous Court made this exact point nearly half a
century ago in
Atlas Roofing
. That was the last time this
Court considered a public-rights case where the constitu-
tionality of an in-house adjudication of statutory claims
brought by the Government was at issue. That case pre-
sented 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 administra-
tive agency.
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 procedures. 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 first instance. See id ., at 450– 455. In light of this “history and our cases,” the Court con- , J., dissenting cluded that, where Congress “create[s] a new cause of ac- tion, and remedies therefor, unknown to the common law,” it is free to “plac[e] their enforcement in a tribunal supply- ing speedy and expert resolutions of the issues involved.” Id ., at 460–461. “That is the case even if the Seventh Amendment would have required a jury where the adjudi- cation of those rights is assigned to a federal court of law.” Id ., at 455; see id ., at 461, n. 16.
The “new rule” and “legally unsound principle” that the
majority accuses this dissent of “unfurl[ing]” today,
ante,
at
17–18, n. 2, is the one that this Court declared “ ‘settled ju-
dicial construction’ . . . ‘from the beginning’ ”: “[T]he Gov-
ernment could commit the enforcement of statutes and the
imposition and collection of fines . . . 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
,
C
It should be obvious by now how this case should have been resolved under a faithful and straightforward applica- tion of Atlas Roofing and a long line of this Court’s prece- dents. The constitutional question is indistinguishable. The majority instead wishes away Atlas Roofing by burying it at the end of its opinion and minimizing the unbroken line of cases on which Atlas Roofing relied. That approach , J., dissenting to precedent significantly undermines this Court’s commit- ment to stare decisis and the rule of law.
This case may involve a different statute from
Atlas Roof-
ing
, but the schemes are remarkably similar. Here, just as
in
Atlas Roofing
, Congress identified 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
market that contributed to the Great Depression of the
1930s. See
ante,
at 1. The inadequate remedies were the
then-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
ibid.
In particular, Con-
gress enacted these securities laws to ensure “full disclo-
sure” and promote ethical business practices “in the
securities industry,”
SEC
v.
Capital Gains Research Bu-
reau, Inc.
,
The prophylactic nature of the statutory regime also is
virtually indistinguishable from the OSHA scheme at issue
in
Atlas Roofing
. 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 2. Critically, fed-
eral-securities laws do not require proof of actual reliance
on an investor’s misrepresentations or that an “investor has
actually suffered financial loss.”
Ante,
at 4; see also v.
Life Partners Holdings, Inc.
Moreover, both here and in
Atlas Roofing
, Congress em-
powered the Government to institute administrative en-
forcement proceedings to adjudicate potential violations of
federal law and impose civil penalties on a private party for
those violations, all while making the final 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 individ-
ual,” 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
,
Ultimately, both cases arise between the Government
and others in connection with the performance of the Gov-
ernment’s constitutional functions, and involve the Govern-
ment 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 Roofing
put
it, “new cause[s] of action, and remedies therefor, unknown
to the common law.”
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.” Con- sumer Financial Protection Bureau , 601 U. S., at 445 (K AGAN , J., concurring). That is why the Court has had no cause to address this kind of constitutional challenge since its unanimous decision in Atlas Roofing . The majority takes a wrecking ball to this settled law and stable govern- ment practice. To do so, it misreads this Court’s precedents, ignores those that do not suit its thesis, and advances dis- tinctions created from whole cloth.
The majority’s treatment of the public-rights doctrine is
not only incomplete, but is gerrymandered to produce to-
day’s result. See Part III–A (
infra
, at 17–21). Unable to
explain that doctrine, the majority effectively ignores the
Article III threshold question to focus instead on two Sev-
enth Amendment cases:
Tull
v.
United States
,
A
To start, it is almost impossible to discern how the major- ity defines a public right and whether its view of the doc- trine is consistent with this Court’s public-rights cases. The , J., dissenting majority 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 14–17, and that Atlas Roofing involved OSHA and not “civil penalty suits for fraud,” ante , at 22. 6 Other times, the majority highlights a particular practice predating the founding, such as the “unbroken tradition” in Murray’s Lessee of ex- ecutive officials issuing warrants of distress to collect reve- nue. Ante , at 15; see also ante , at 13–14 (G ORSUCH , J., con- curring). Needless to say, none of these explanations for the doctrine is satisfactory. What is the legal principle be- hind saying only these areas and no further? This Court has rejected that kind of arbitrary line-drawing in cases like Stranahan and Atlas Roofing . How does the require- ment of a historical practice dating back to the founding, or “flow[ing] from centuries-old rules,” ante , at 17, account for the broad universe of public-rights cases in the United States Reporter? 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] field[s] and had exercised it.” Ante, at 16–17. To the extent the majority thinks this is a distinction, it fails for at least two reasons.
First, Atlas Roofing expressly rejected the argument that the public-rights doctrine is limited to particular exercises of congressional power. The employers in Atlas Roofing 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 do- ——————
[6] The majority also cites cases involving “relations with Indian tribes, the administration of public lands, and the granting of public benefits such as payments to veterans, pensions, and patent rights.” Ante, at 17 (citations omitted). , J., dissenting
main of the Federal Government and critical to its very ex-
istence—the power over immigration, the importation of
goods, and taxation.”
Second, even if Atlas Roofing had not explicitly rejected the proposed distinction here, the majority cannot reconcile its restrictive view of the public-rights doctrine with Atlas Roofing and other precedents. For example, it is unclear how OSHA, or the National Labor Relations Act at issue in Jones & Laughlin , would fit the majority’s view of the pub- lic-rights doctrine, or why the exercise of interstate-com- merce power to enact those statutes would be any different from the exercise of that same power to enact the federal- securities laws at issue here. See Atlas Roofing , 430 U. S., at 457 (“It is also apparent that Jones & Laughlin , Pernell , and Curtis are not amenable to the limitations suggested 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
Government in its sovereign capacity. See
Granfinanciera
,
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
provide an incomplete and unprincipled account of the doc-
trine.
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 gov- ernmental efficiency.” Ante, at 26; see also ante, at 19 (G ORSUCH , J., concurring). No one has made that argument in this case; not the Government and certainly not this dis- sent. The fact that certain rights might be susceptible to speedy and expert resolution through non-Article III adju- dication is not what makes them “rights of the public —that is, rights pertaining to claims brought by or against the United States.” Granfinanciera , 492 U. S., at 68–69 (Scalia, J., concurring in part and concurring in judgment).
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 coe- qual branches of Government deserve better.
B
Rather than relying on Atlas Roofing or the relevant pub- lic-rights cases, the majority instead purports to follow Tull and Granfinanciera . The former involved a suit in federal court and the latter involved a dispute between private par- ties. 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 ——————
[7] Among other things, the concurrence accuses this dissent of behaving like a “picky child at the dinner table.” Ante, at 21 (opinion of G ORSUCH , 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.
22 , J., dissenting
this Court’s precedents between the non-Article III adjudi- cation of public-rights matters involving the liability of one individual to another and those involving claims belonging 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 Granfinanciera 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 ma- jority elides the critical distinction between those cases and this one: Whether Congress assigned the Government’s sov- ereign rights to civil penalties to a non-Article III factfinder for adjudication.
The majority bafflingly proclaims that “the remedy is all
but dispositive” in this case,
ante,
at 9, ignoring that
Atlas
Roofing
and countless precedents before it rejected that
proposition. Not content to take just a page from the em-
ployers’ challenge in
Atlas Roofing
, the majority has taken
their whole brief, resuscitating yet another theory that this
Court has long foreclosed. The employers in
Atlas Roofing
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 find viola- tions and award civil penalties to the Government. See su- pra , at 9–12. Long before Atlas Roofing , this Court held that the Constitution permits Congress to enact statutory obligations and then “sanction their enforcement by reason- able money penalties” by government officials “without the necessity of invoking the judicial power.” Stranahan , 214 U. S., at 339; see id ., at 338–339 (collecting cases). That the SEC imposed civil penalties on respondents therefore has little, if any, bearing on the resolution of this case.
Again, even if over a century of precedent did not fore-
close the majority’s argument, it fails on its own terms. The
majority relies almost entirely on
Tull
, which held that
statutory claims for civil penalties were “a type of remedy
at common law” that entitled a defendant to a jury trial.
That conclusion says nothing about the constitutionality of the SEC’s in-house adjudicative scheme. Atlas Roofing and its predecessors could not have been clearer on this point: Congress can assign the enforcement of a statutory obligation for in-house adjudication to executive officials, “even if the Seventh Amendment would have required a jury where the adjudication of those rights is assigned to a *84 24 , J., dissenting
federal court of law instead of an administrative agency.”
It would have been quite remarkable for
Tull
, which in-
volved a claim in federal court, to overrule silently more
than a century of caselaw involving non-Article III adjudi-
cations of the Government’s rights to civil penalties for stat-
utory violations. Of course,
Tull
did no such thing.
Tull
even reaffirmed
Atlas Roofing
by emphasizing that the Sev-
enth Amendment depends on the forum, not just the rem-
edy, because it “is not applicable to administrative proceed-
ings.”
The majority next argues that the “close relationship” be-
tween the federal-securities laws and common-law fraud
“confirms that this action is ‘legal in nature,’ ” and entitles
respondents to a jury trial.
Ante,
at 13. That argument
does not fare any better than the argument on remedy.
Again, the majority bends inapposite case law to an illogical
thesis.
Granfinanciera
, on which the majority relies to
make its cause-of-action argument, set forth the public-
25
, J., dissenting
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 Govern-
ment in its sovereign capacity, the
Granfinanciera
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
assigning their resolution to a [non-Article III] forum in
which jury trials are unavailable.”
Id.
, at 52 (citing
Atlas
Roofing
,
The Court held in Granfinanciera 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 con- veyance were traditionally available at common law. See ——————
[8] The majority leaves open the possibility that
Granfinanciera
might
have overruled
Atlas Roofing
. See
ante,
at 22–23. That suggestion
strains credulity. By my count,
Granfinanciera
favorably cites to
Atlas
Roofing
at least 12 times. See
id
., at 43–49. That did not resolve the case, however. Un-
like in
Tull
, the proceeding at issue in
Granfinanciera
was
in a non-Article III forum (
i
.
e
., a bankruptcy court). So, to
answer whether Congress could assign the fraudulent-con-
veyance claim to a bankruptcy judge for decision, Congress
needed to decide whether the “legal cause of action in-
volve[d] ‘public rights.’ ”
Granfinanciera
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 ca-
pacity.”
Id
., at 53 (citing
Atlas Roofing
,
The second kind of public right that Granfinanciera rec- ognized involves “disputes to which the Federal Govern- ment is not a party in its sovereign capacity,” 492 U. S., at 55, n. 10, that is, usually “[w]holly private” disputes, id ., at 51. The public-rights analysis in these private-dispute cases looks different: “The crucial question, in cases not in- volving the Federal Government , is whether ‘Congress, act- ing for a valid legislative purpose pursuant to its constitu- tional powers under Article I, has created a seemingly “private” right that is so closely integrated into a public reg- ulatory scheme as to be a matter appropriate for agency res- olution with limited involvement by the Article III judici- ary.’ ” Id ., at 54 (quoting Thomas , 473 U. S., at 593–594; , J., dissenting emphasis added; alterations omitted).
These two approaches together stand for the proposition
that “[i]f a statutory right is not closely intertwined with a
federal regulatory program Congress has power to enact,
and
if that right neither belongs to nor exists against the
Federal Government, then it must be adjudicated by an Ar-
ticle III court.”
Because
Granfinanciera
did not involve a statutory right
that belonged to the Government in its sovereign capacity,
Atlas Roofing
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 20 (quoting
Granfinanciera
,
The majority brushes aside this critical distinction be-
tween
Atlas Roofing
and
Granfinanciera
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 . . . sufficient’ by itself to
trigger the exception.”
Ante
, at 22 (quoting
Northern Pipe-
line Constr. Co. Marathon Pipe Line Co.
,
[9] Indeed, “the public-rights doctrine does not extend to any criminal , J., dissenting the substance” of the claim. Ante , at 21.
By no means, though, does this case involve a “purely tax- onomic change.” Granfinanciera , 492 U. S., at 61. Con- gress did not just repackage a common-law claim under a new label. It created new statutory obligations and an en- tire federal scheme. See supra , at 14–16. 10 Perhaps most importantly, Congress created a new right unknown to the common law that, unlike common-law fraud, belongs to the public and inheres in the Government in its sovereign ca- pacity. That is why, when the SEC seeks to enforce the fed- eral-securities laws, it does so to remedy the harm to the United States. See supra , at 16. It seeks to protect the in- tegrity of the securities market as a whole through the im- position of new and distinct remedies like civil penalties ——————
matters, although the Government is a proper party.”
Northern Pipeline
Constr. Co.
, 458 U. S., at 70, n. 24 (plurality opinion) (citing
United
States ex rel. Toth
v.
Quarles
,
[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 be-
cause of critical differences between the two. Even if Congress drew upon
common-law fraud when it enacted federal-securities laws, see
ante,
at
11–12, 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.
Scientific-Atlanta, Inc.
,
and orders barring violators from holding certain positions and performing 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 an- other for monetary or injunctive relief of the sort that law courts (with juries) in England or the States have tradition- ally heard.” Brief for Professor John Golden et al. as Amici Curiae 3. Congress did not unlawfully “siphon” a tradi- tional legal action “away from an Article III court” when it enacted the federal-securities laws and provided for their enforcement within the SEC. Ante, at 21.
The majority asserts that “
Granfinanciera
effectively de-
cides this case.”
Ante
, at 20. That can only be true, though,
if one ignores what
Granfinanciera
actually says: Its public-
rights analysis of whether an action is closely intertwined
with a federal regulatory program only applies “in cases not
involving the Federal Government.”
C
Both cases relied on by the majority, Tull and Granfinan- ciera , reaffirm that Atlas Roofing 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 Roof- ing fails. The majority’s principal argument that the OSHA scheme in Atlas Roofing “did not borrow its cause of action from the common law” and was instead a “self-consciously novel” scheme that “resembled a detailed building code,” ante, at 23–24, is flawed on multiple fronts.
First, OSHA’s cause of action should be largely irrelevant under the majority’s view that the remedy of civil penalties , J., dissenting is effectively dispositive under Tull . Atlas Roofing , 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. Log- ically, then, either Atlas Roofing and countless other cases were wrongly decided, or the majority’s view on civil penal- ties is wrong.
Second, because the majority elides the critical distinc- tion between Atlas Roofing and Granfinanciera , it fails to grapple with the fact that this case, like Atlas Roofing and unlike Granfinanciera , involves the Government acting in its sovereign 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 relation- ship between OSHA and the common-law torts of wrongful death and negligence. Unlike their common-law compara- tors, neither statute requires actionable harm to an individ- ual. See supra , at 15. 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 stand- ards. Ante, at 23–24. 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 specific and exceedingly detailed requirements implementing the stat- ute’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) (prohibiting investment advisers from having custody of cli- ent funds or securities unless specific requirements are 31 , J., dissenting met, including qualifications, notices, and account state- ments).
The majority further rests on the notion that Congress drew inspiration from the common law in enacting the an- tifraud provisions of the federal-securities laws, whereas OSHA’s new statutory duty did not bring any common-law soil with it. See ante, at 23–24. 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 14–15. 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
distinguish
Atlas Roofing
fail. The majority cannot escape
the entrenched principle that a “legal cause of action in-
volves ‘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.”
Granfinanciera
,
[11] In
Tull United States
,
[12] The concurrence’s assertion that the majority is “follow[ing] the ad- vice of Justices Brennan and Marshall” by “ ‘limit[ing] the judicial au- thority of non-Article III federal tribunals’ ” is misleading. Ante, at 20 (quoting Schor , 478 U. S., at 859 (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 excep- tions: (1) territorial courts; (2) courts-martial; and (3) forums adjudicat- ing public-rights matters. As examples of the public-rights category, Jus- tice Brennan cited Murray’s Lessee , Ex parte Bakelite , Crowell , Thomas , and his plurality opinion in Northern Pipeline . See Schor , 478 U. S., at , J., dissenting 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 pow- ers.
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
,
Today’s decision disregards these foundational princi- ples. 13 Time will tell what is left of the public-rights doc- ——————
859. As those citations demonstrate, both Justices Brennan and Mar-
shall certainly thought that public-rights matters extend to certain pri-
vate disputes that do not involve the Government as a party, as well as
disputes involving the Government in connection with different exercises
of congressional power. Indeed, it was Justice Brennan who reaffirmed
Atlas Roofing
in his opinion for the
Granfinanciera
Court and explained
that a public right includes, at a minimum, a statutory right that “be-
longs to [o]r exists against the Federal Government.”
[13] Precedents should not be so easily discarded based on the views of
, J., dissenting
trine. Less uncertain, however, are the momentous conse-
quences that flow from the majority’s insistence that the
Government’s rights to civil penalties must now be tried be-
fore a jury in federal court. The majority’s decision, which
strikes down the SEC’s in-house adjudication of civil-pen-
alty claims on the ground that such claims are legal in na-
ture and entitle respondents to a federal jury, effects a seis-
mic 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
v.
Consumer Financial Protection Bureau
,
The majority pulls a rug out from under Congress with- out even acknowledging that its decision upends over two centuries 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 Roofing that “during the whole of our history, regulatory fines and penalties have been col- lected by non-jury procedures pursuant to . . . legislative de- cisions,” and that “[i]t would be most remarkable if, at this late date, the Seventh Amendment were construed to out- law this consistent rule of government followed for two cen- turies.” Brief for Respondents in Atlas Roofing , O. T. 1976, No. 75–746, etc., pp. 81–82. This Court agreed and upheld that practice, it seemed, once and for all.
——————
some commentators, or on whether or not a particular case is “cele-
brated.”
Ante
, at 25, n. 4.
Atlas Roofing
and the long line of cases before
it are precedents from this Court entitled to
stare decisis
effect. Indeed,
this Court has reaffirmed and repeatedly cited
Atlas Roofing
with ap-
proval. See,
e
.
g
.,
Oil States
,
Following this Court’s precedents and the recommenda- tion of the Administrative Conference of the United States, Congress has enacted countless new statutes in the past 50 years that have empowered federal agencies to impose civil penalties for statutory violations. See 2 P. Verkuilm, D. Gifford, C. Koch, R. Pierce, & J. Lubbers, Administrative Conference of the United States, Recommendations and Re- ports, 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 en- forcement statutes that permitted agencies to collect civil 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 adminis- trative proceedings. See Tr. of Oral Arg. 78–79 (Principal Deputy Solicitor General) (recognizing two dozen agencies with administrative 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 Commission); §§499c(a), 586, 2279e(a) (Depart- ment of Agriculture); 8 U. S. C. §§1324c, 1324d (Depart- ment of Justice); 12 U. S. C. §§5563(a)(2), (c), (Consumer Fi- nancial Protection Bureau); 16 U. S. C. §823b(c) (Federal Energy Regulatory Commission); 20 U. S. C. §1082(g) (De- partment of Education); 21 U. S. C. §335b (Department of Health and Human Services/Food and Drug Administra- tion); 29 U. S. C. §666(j) (Occupational 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 Protection Agency); 39 U. S. C. §3018(c) (Postal Service); 42 U. S. C. §3545(f ) (De- partment of Housing and Urban Development); 46 U. S. C. , J., dissenting §41107(a) (Federal Maritime Commission); 47 U. S. C. §503(b)(3) (Federal Communications Commission); 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 pro- ceedings and federal court. See, e . g ., 12 U. S. C. §§5563(a), 5564(a), 5565(a)(1), (2)(H), and (c) (Consumer Financial Protection Bureau); 33 U. S. C. §§1319(a), (b), and (g) (En- vironmental Protection Agency); supra, at 2 (SEC). Others do not have that choice. As the above-cited statutes con- firm, the Occupational Safety and Health Review Commis- sion, the Federal Energy Regulatory Commission, the Fed- eral Mine Safety and Health Review Commission, the Department of Agriculture, 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 dis- sent just announced today. Unfortunately, that mistaken view means that the constitutionality of hundreds of stat- utes may now be in peril, and dozens of agencies could be stripped of 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” pursuant to a statute that is “barely over a decade old,” ante, at 18, n. 2, 22, an assurance that is in significant 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 , J., dissenting today, but those of us who cherish the rule of law have noth- ing to celebrate.
* * *
Today’s ruling is part of a disconcerting trend: When it
comes to the separation of powers, this Court tells the
American public and its coordinate branches that it knows
best. See,
e
.
g
.,
Collins
v.
Yellen
,
There are good reasons for Congress to set up a scheme like the SEC’s. It may yield important benefits over jury trials in federal court, such as greater efficiency and exper- tise, transparency and reasoned decisionmaking, as well as OTOMAYOR , J., dissenting uniformity, predictability, and greater political accounta- bility. See, e . g ., Brief for Administrative Law Scholars as Amici Curiae 30–32. Others may believe those benefits 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) debate on whether the number of agencies and authorities properly corresponds to the ever-increasing and evolving problems faced by our society.
This Court’s job is not to decide who wins this debate. These are policy considerations for Congress in exercising its legislative judgment and constitutional authority to de- cide 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, “the majority arrogates Congress’s policymaking role to itself.” Garland v. Cargill , 602 U. S. 406, 442 (2024) (S , J., dissenting). It prescribes artificial con- straints on what modern-day adaptable governance must look like. In telling Congress that it cannot entrust certain public-rights matters to the Executive because it must bring them first into the Judiciary’s province, the majority oversteps its role and encroaches on Congress’s constitu- tional authority. Its decision offends the Framers’ constitu- tional design so critical to the preservation of individual lib- erty: the division of our Government into three coordinate branches to avoid the concentration of power in the same hands. The Federalist 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 be- lief that any “mistaken or wrongful exertion by the legisla- tive department of its authority” can lead to “grave abuses” , J., dissenting and “it behooves the judiciary to apply a corrective by ex- ceeding its own authority” through requiring civil-penalty claims to proceed before a federal jury. Stranahan , 214 U. S., at 340. As this Court said over a century ago in this public-rights context, that belief “mistakenly assumes that the courts can alone be safely intrusted with power, and that hence it is their duty to unlawfully exercise preroga- tives which they have no right to exert, upon the assump- tion that wrong must be done to prevent wrong being ac- complished.” Ibid .
By giving respondents a jury trial, even one that the Con- stitution does not require, the majority may think that it is protecting liberty. That belief, too, is deeply misguided. The American People should not mistake judicial hubris with the protection of individual rights. Our first President understood this well. In his parting words to the Nation, he reminded us that a branch of Government arrogating for itself the power of another based on perceptions of what, “in one instance, may be the instrument of good . . . is the cus- tomary weapon by which free governments are destroyed.” Farewell Address (1796), in 35 The Writings of George Washington 229 (J. Fitzpatrick ed. 1940) (footnote omitted). The majority today ignores that wisdom.
Because the Court disregards its own precedent and its coequal partners in our tripartite system of Government, I respectfully dissent.