Last week, the Supreme Court heard arguments in another one of those cases that sounds pedantic but may or may not toss out a quarter of a millennium of American jurisprudence in favor of what old-timey English gentlemen might have thought about the matter in the spare moments between seances, bloodlettings, and selling their daughters off to prospective business partners.
The case is SEC v. Jarkesy, and the astonishingly broad question the court wanted to ask is whether the Securities and Exchange Commission or any other government agency can impose fines or take other punitive actions against those who violate government regulations. The government says yes; the crackpot Fifth Circuit ruled that no, it turns out we've been doing it wrong for centuries now and the government doesn't get to levy fines unless there's a jury trial attached to every one of them.
Balls and Strikes has the rundown:
Jarkesy went to the right place: The Fifth Circuit issued an astonishingly broad ruling in his favor and determined on multiple constitutional grounds that the SEC doesn’t have the power—and, beyond that, that Congress can’t give it the power—to adjudicate cases in the usual way. Instead, the Fifth Circuit agreed that SEC enforcement actions that seek civil penalties have to go through jury trials in federal court. Relying on jury trials would make SEC enforcement actions much more costly and cumbersome, leading to fewer prosecutions for securities fraud and, thus, more fraudsters defrauding the American people. The SEC appealed to the U.S. Supreme Court, which heard the case, SEC v. Jarkesy, on Wednesday.
Oral argument did not bode well for the future of the SEC and the millions of people it protects from the schemes of money-grubbing millionaires. Jarkesy’s counsel, S. Michael McColloch, argued that modern securities fraud charges are basically the same as common law actions recognized in the courts of England in 1791, when the Seventh Amendment was ratified. Justice Neil Gorsuch asked McCollocuh to compare claims then and now, and seemed satisfied with the response. “Those elements all match up,” Gorsuch said.
Cutting to the chase, the Supreme Court's conservatives were very interested in the argument that since people in England in 1791 thought differently than Americans have for the last 200+ years, the old time-y English version trumps all the American laws passed in the two centuries since. And that led the non-conservatives on the nation’s highest court to express a collective what the hell, because this entire premise of digging up 16th- to 18th-century English corpses and declaring them to be the final authorities on all legal matters forever has gone past a mere schtick and is now a fetish. And not a good fetish.
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