{"id":12450,"date":"2023-12-17T16:06:19","date_gmt":"2023-12-17T16:06:19","guid":{"rendered":"http:\/\/lonecandle.com\/?p=12450"},"modified":"2023-12-17T16:06:19","modified_gmt":"2023-12-17T16:06:19","slug":"the-supreme-court-seeks-a-middle-path-between-following-the-law-and-blowing-up-the-government","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=12450","title":{"rendered":"The Supreme Court seeks a middle path between following the law and blowing up the government"},"content":{"rendered":"\n

\n\n“Few figures in American history, however, have less credibility to speak about the importance of the right to a jury trial, as Gorsuch\u2019s very first major Supreme Court opinion<\/a> was a direct attack on that right. In Epic Systems v. Lewis<\/em><\/a>(2018), Gorsuch wrote for the Court\u2019s Republican majority that employers have a right to force their employees to sign away their right to sue them in any court at all \u2014 including courts that protect the right to a jury trial \u2014 and to shunt those cases into private arbitration.<\/p>\n\n\n\n

Indeed, the Court\u2019s GOP-appointed majority has long been vocal advocates of forced arbitration<\/a>, dismissing arguments that these privatized forums violate the Seventh Amendment, and often mangling the text of federal statutes<\/a> to maximize employers\u2019 power to avoid jury trials.<\/p>\n\n\n\n

So why is the Court\u2019s right flank suddenly so concerned that unscrupulous hedge fund managers might not get to present their case to a jury? The most likely answer is that the six Republican appointees have sought to centralize power within the Article III courts<\/a>, often at the expense of federal agencies supervised by the president. The Supreme Court\u2019s recent \u201cmajor questions doctrine<\/a>\u201d cases, for example, have given the justices a virtually unlimited veto power over any policy enacted by a federal agency that a majority of the Court does not like.<\/p>\n\n\n\n

Chief Justice John Roberts, in particular, was quite explicit during the Jarkesy <\/em>argument about his belief that federal agencies are too powerful, and that much of this power should be transferred to him and his fellow Article III judges. The Atlas Roofing<\/em> decision, he noted, is 50 years old, and he argued that the role of federal agencies has become \u201cenormously more significant\u201d in that time.<\/p>\n\n\n\n

Roberts also characterized administrative law judges \u2014 who, again, are in-house at various federal agencies, but also enjoy robust job protections to insulate them from political pressure \u2014 as the executive branch\u2019s \u201cown employees.\u201d His implication appeared to be that Jarkesy\u2019s Seventh Amendment argument is as good of a reason as any to shift power away from these administrative law judges, and towards the Article III branch that Roberts leads.<\/p>\n\n\n\n

That said, Roberts and some of his fellow Republican appointees also appeared to cast about for a way to rule in Jarkesy\u2019s favor, without completely upending the government\u2019s ability to resolve cases in administrative forums.<\/p>\n\n\n\n

The federal government employs nearly 2,000 administrative law judges<\/a>, in addition to about 650 non-Article III judges who hear immigration cases<\/a>. Meanwhile, there are fewer than 900 Article III judges authorized by law<\/a>. So, if the United States suddenly loses its ability to bring cases in administrative forums, the entire federal system will lose the overwhelming majority of its capacity to adjudicate cases \u2014 forcing litigants to wait years before an Article III judge has the time to take up their case.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Meanwhile, both Gorsuch and Justice Brett Kavanaugh suggested drawing a line between cases where the government seeks to impose a \u201cpenalty\u201d on a defendant, and cases about whether a particular individual is entitled to a federal benefit. That would require most SEC enforcement actions to be heard by an Article III court that can conduct a jury trial, but would also allow the Social Security Administration\u2019s more than 1,600 administrative law judges to continue to determine who is entitled to federal benefits.<\/p>\n\n\n\n

In any event, the bottom line is that Jarkesy appears likely to prevail. And the Court\u2019s GOP-appointed majority appears likely to send his case to an Article III court where Jarkesy can receive a jury trial. The Seventh Amendment, it appears, protects hedge fund managers, but not workers.<\/p>\n\n\n\n

But, while that result is unlikely to satisfy anyone who does not share Neil Gorsuch\u2019s political views, it would also be a relatively minor attack on the federal government\u2019s ability to enforce the law \u2014 and a much less severe attack on US state capacity than the Fifth Circuit\u2019s decision.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/scotus\/2023\/11\/29\/23980966\/supreme-court-sec-jarkesy-administrative-law-judges<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“Few figures in American history, however, have less credibility to speak about the importance of the right to a jury trial, as Gorsuch\u2019s very first major Supreme Court opinion was a direct attack on that right. In Epic Systems v. Lewis (2018), Gorsuch wrote for the Court\u2019s Republican majority that employers have a right to force their employees to sign away their right to sue them in any court at all \u2014 including courts that protect the right to a jury trial \u2014 and to shunt those cases into private arbitration.
\nIndeed, the Court\u2019s GOP-appointed majority has long been vocal advocates of forced arbitration, dismissing arguments that these privatized forums violate the Seventh Amendment, and often mangling the text of federal statutes to maximize employers\u2019 power to avoid jury trials.<\/p>\n

So why is the Court\u2019s right flank suddenly so concerned that unscrupulous hedge fund managers might not get to present their case to a jury? The most likely answer is that the six Republican appointees have sought to centralize power within the Article III courts, often at the expense of federal agencies supervised by the president. The Supreme Court\u2019s recent \u201cmajor questions doctrine\u201d cases, for example, have given the justices a virtually unlimited veto power over any policy enacted by a federal agency that a majority of the Court does not like.<\/p>\n

Chief Justice John Roberts, in particular, was quite explicit during the Jarkesy argument about his belief that federal agencies are too powerful, and that much of this power should be transferred to him and his fellow Article III judges. The Atlas Roofing decision, he noted, is 50 years old, and he argued that the role of federal agencies has become \u201cenormously more significant\u201d in that time.<\/p>\n

Roberts also characterized administrative law judges \u2014 who, again, are in-house at various federal agencies, but also enjoy robust job protections to insulate them from political pressure \u2014 as the executive branch\u2019s \u201cown employees.\u201d His implication appeared to be that Jarkesy\u2019s Seventh Amendment argument is as good of a reason as any to shift power away from these administrative law judges, and towards the Article III branch that Roberts leads.<\/p>\n

That said, Roberts and some of his fellow Republican appointees also appeared to cast about for a way to rule in Jarkesy\u2019s favor, without completely upending the government\u2019s ability to resolve cases in administrative forums.<\/p>\n

The federal government employs nearly 2,000 administrative law judges, in addition to about 650 non-Article III judges who hear immigration cases. Meanwhile, there are fewer than 900 Article III judges authorized by law. So, if the United States suddenly loses its ability to bring cases in administrative forums, the entire federal system will lose the overwhelming majority of its capacity to adjudicate cases \u2014 forcing litigants to wait years before an Article III judge has the time to take up their case.”<\/p>\n

…<\/p>\n

“Meanwhile, both Gorsuch and Justice Brett Kavanaugh suggested drawing a line between cases where the government seeks to impose a \u201cpenalty\u201d on a defendant, and cases about whether a particular individual is entitled to a federal benefit. That would require most SEC enforcement actions to be heard by an Article III court that can conduct a jury trial, but would also allow the Social Security Administration\u2019s more than 1,600 administrative law judges to continue to determine who is entitled to federal benefits.<\/p>\n

In any event, the bottom line is that Jarkesy appears likely to prevail. And the Court\u2019s GOP-appointed majority appears likely to send his case to an Article III court where Jarkesy can receive a jury trial. The Seventh Amendment, it appears, protects hedge fund managers, but not workers.<\/p>\n

But, while that result is unlikely to satisfy anyone who does not share Neil Gorsuch\u2019s political views, it would also be a relatively minor attack on the federal government\u2019s ability to enforce the law \u2014 and a much less severe attack on US state capacity than the Fifth Circuit\u2019s decision.”<\/p>\n

https:\/\/www.vox.com\/scotus\/2023\/11\/29\/23980966\/supreme-court-sec-jarkesy-administrative-law-judges<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[790,1213,528],"class_list":["post-12450","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-courts","tag-judiciary","tag-supreme-court"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/12450","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12450"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/12450\/revisions"}],"predecessor-version":[{"id":12451,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/12450\/revisions\/12451"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12450"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12450"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12450"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}