SEC v. Jarkesy

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, concurring.¶

The Court decides a single issue: Whether the Security and Exchange Commission’s use of in-house hearings to seek civil penalties violates the Seventh Amendment right to a jury trial. It does. As the Court details, the government has historically litigated suits of this sort before juries, and the Seventh Amendment requires no less.¶

I write separately to highlight that other constitutional provisions reinforce the correctness of the Court’s course. The Seventh Amendment’s jury-trial right does not work alone. It operates together with Article III and the Due Process Clause of the Fifth Amendment to limit how the government may go about depriving an individual of life, liberty, 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 timehonored principles. Taken together, all three provisions vindicate the Constitution’s promise of a “fair trial in a fair tribunal.” In re Murchison , 349 U. S. 133, 136 (1955).¶

I¶

In March 2013, the SEC’s Commissioners approved charges against Mr. Jarkesy. The charges were serious; the agency accused him of defrauding investors. The relief the agency sought was serious, too: millions of dollars in civil penalties. See SEC, Division of Enforcement’s Post-Hearing Memorandum of Law in In re John Thomas Capital Management Group, LLC , Admin. Proc. File No. 3–15255, pp. 28–29 (SEC, Apr. 7, 2014). For most of the SEC’s 90year 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 Commissioners 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 master—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 impossible, for th[e ALJ] to convey the image of being an impartial fact finder.” B. Segal, The Administrative Law¶

Judge, 62 A. B. A. J. 1424, 1426 (1976). And with a jury out of the picture, the ALJ decides not just the law but the facts as well. 1¶

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 discussions that he had found defendants liable in every contested case and never once ''ruled against the agency’s enforcement division.'' Axon Enterprise, Inc. v. FTC , 598 U. S. 175, 213–214 (2023) (GORSUCH, J., concurring in judgment).¶

The shift from a court to an ALJ didn’t just deprive Mr. Jarkesy of the right to an independent judge and a jury. He also lost many of the procedural protections our courts supply in cases where a person’s life, liberty, or property is at stake. After an agency files a civil complaint in court, a defendant may obtain from the SEC a large swathe of documents 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¶

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1 In many agencies, litigants are not even entitled to have ALJs, with their modicum of protections, decide their cases. These agencies use “administrative judges.” Some agencies can replace these administrative judges if they don’t like their decisions. And some of these judges may move in and out of prosecutorial and adjudicatory roles, or move in and out of the very industries their agencies regulate. See United States v. Arthrex, Inc. , 594 U. S. 1, 36–37 (2021) (GORSUCH, J., concurring in part and dissenting in part).¶

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 contain 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 subpoenas 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 rigor they do in court. §201.235(a)(5); see §201.230. For that reason, live testimony often gives way to “investigative testimony”—that is, a “sworn statement” taken outside the presence of the defendant or his counsel. §201.235(b).¶

How did all this play out in Mr. Jarkesy’s case? Accompanying its charges, the SEC disclosed 700 gigabytes of data—equivalent to between 15 and 25 million pages of information—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 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 eventually 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 v. Berryhill , 587 U. S. 97, 103 (2019).¶

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 appeal was pending, employees in that division—including an ''Enforcement Supervisor'' in the regional office prosecuting Mr. Jarkesy—accessed confidential memos by the Commissioners’ 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 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 themselves 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 accorded 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 usually required in such cases then, nor are they today). See, e.g. , Lewis v. Lewis & Clark Marine, Inc. , 531 U. S. 438, 448 (2001). But Parliament deployed these juryless tribunals in the Colonies to new ends that, according to John Adams, could fill ''volumes.'' Ubbelohde vii. The creep away from the original province of those courts began with the grant of authority over violations of certain trade and customs laws. But in the decade before the Revolution, the drip, drip, drip of expanding power became a torrent, as Parliament allowed more and more actions to be brought in colonial vice-admiralty courts.¶

Many of the matters added to vice-admiralty jurisdiction in the Colonies would have required juries in England. Id ., at 112. But as the Massachusetts royal governor explained, colonial juries ''were not to be trusted.'' D. Lovejoy, Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1764–1776, 16 Wm. & Mary Q. 459, 468 (1959). Even violations that did not implicate the jury right normally would have been heard in England “before a court in [one’s] own neighborhood or county where [one] could count on traditional common-law procedure.” Id. , at 471. But by expanding the reach of vice-admiralty jurisdiction in the Colonies, Parliament denied similar protections to Americans. 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 pleasure of the royal administration. See United States v. Will , 449 U. S. 200, 218–219 (1980). And, doing away with the pretense of impartiality entirely, some vice-admiralty judges held dual appointments—for instance, as colonial attorneys general and vice-admiralty judges. Ubbelohde 162163.¶

Like the modern SEC, British colonial officials were not required to bring many of their cases before the vice-admiralty courts. Often, Parliament gave those officials the option 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 victors.” Id ., at 21.¶

B¶

The abuses of these courts featured prominently in the calls for revolution. In the First Continental Congress, the assembled delegates condemned how Parliament “extend[ed] the jurisdiction of Courts of Admiralty,” complained how colonial judges were “dependent on the¶

Crown,” and demanded the right to the “common law of England” and the “great and inestimable privilege” of a jury trial. Declaration and Resolves of the First Continental Congress, Oct. 14, 1774, in 1 Journals of the Continental Congress, 1774–1789, pp. 68–69 (W. Ford 1904 ed.). Two years later, the drafters of the Declaration of Independence repeated these concerns, 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 America.” Ubbelohde 190.¶

When the smoke settled, the American people went to great lengths to prevent a backslide toward anything like the vice-admiralty courts. Erlinger , 602 U. S., at ___–___ (slip op., at 5–6). One product of these efforts was Article III of the Constitution. There, the Constitution provided that “[t]he judicial Power”—the power over “Cases” and “Controversies”—would lie with life-tenured, salary-protected judges. §§1–2; see Oil States Energy Services, LLC v. Greene’s Energy Group, LLC , 584 U. S. 325, 346 (2018) (GORSUCH, J., dissenting). As the Court has recognized, this meant the Executive Branch could “exercise no part of th[e] judicial power.” Murray’s Lessee v. Hoboken Land & Improvement Co. , 18 How. 272, 275 (1856), “no matter how court-like [its] decisionmaking process might appear,” Ortiz v. United States , 585 U. S. 427, 465 (2018) (ALITO, J., dissenting). Nor could Congress “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”—the traditional scope of the “judicial Power.” Murray’s Lessee , 18 How., at 284; see Art. III, §2.¶

Despite these guarantees, many at the founding thought Article III didn’t go far enough. Yes, it promised a defendant an independent judge rather than one dependent on those who hold political power. But what would stop Congress from requiring litigants to navigate vice-admiralty’s alien procedures in all federal cases? Or from making “federal 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 prominent Anti-Federalist observed, “brings with it an open and public discussion of all causes, and excludes secret and arbitrary proceedings.” Letter from a Federal Farmer (Jan. 18, 1788), in id ., at 320 (Federal Farmer 15). The participation of ordinary Americans “drawn from the body of the people” serves another function, too: “If the conduct of judges shall . . . tend to subvert the laws, and change the forms of 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 justice, always ready to protect the officers of government against the weak and helpless citizen”? Essay of a Democratic Federalist (Oct. 17, 1787), in 3 Complete Anti-Federalist 61.¶

The answer to these concerns was the Bill of Rights. Erlinger , 602 U. S., at ___ (slip op., at 6). As the Court details, the Seventh Amendment promised the right to a jury trial in ''[s]uits at common law.'' Ante , at 8 (quoting Amdt. 7). But because the Constitution was designed to “endure for ages to come,” McCulloch v. Maryland , 4 Wheat. 316, 415 (1819), this did not mean only those “suits, which the common law recognized among its old and settled proceedings,” Parsons v. Bedford , 3 Pet. 433, 447 (1830). The founding generation anticipated the possibility Congress would introduce new causes of action and perhaps new remedies, too. See ibid. Accordingly, this Court has long understood the Seventh Amendment’s protections to apply in “all [civil] suits which are not of equity [or] admiralty jurisdiction.” Ibid. ; accord, ante , at 8–9. In this way, the Seventh Amendment seeks to ensure there will be no juryless vice-admiralty courts in the United States.¶

The Fifth Amendment’s Due Process Clause addressed 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, liberty, 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 v. Dimaya , 584 U. S. 148, 176 (2018) (GORSUCH, J., concurring in part and concurring in judgment) (internal quotation marks omitted); see Erlinger , 602 U. S., at ___–___ (slip op., at 6–7).¶

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 common law” had to be observed before any such deprivation could take place. 3 J. Story, Commentaries on the Constitution 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, opportunity to answer, and a trial according to some settled course of judicial proceedings.” Murray’s Lessee , 18 How., at 280. This constitutional baseline was designed to serve as “a restraint on the legislative” branch, preventing Congress from “mak[ing] any process ‘due process of law,’ by its mere will.” Id. , at 276.¶

C¶

These three constitutional provisions were meant to work together, and together they make quick work of this case. In fact, each provision requires the result the Court reaches today.¶

First , because the ''matter'' before us is one “which, from its nature, is the subject of a suit at the common law,” id. , at 284, “the responsibility for deciding [it] rests with Article III judges in Article III courts.” Stern v. 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 founding, 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 judicial 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 quotation marks omitted). As we have seen, the government cannot evade the Seventh Amendment so easily. See ante , at¶

9; supra , at 8–10.¶

Third , were there any doubt, the Due Process Clause confirms 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 protections, see Murray’s Lessee , 18 How., at 280, not the use of ad hoc adjudication procedures before the same agency responsible for prosecuting the law, subject only to hands-off judicial review, see supra , at 10–11.¶

III A¶

The government resists these conclusions. As the government sees it, this case implicates the so-called public rights exception. One that defeats not only Mr. Jarkesy’s right to trial by jury, but also his right to proceed before an independent trial judge consistent with traditional judicial processes. That is, on the government’s account, not only does the Seventh Amendment fall away; so does the usual operation of Article III and the Due Process Clause.¶

In the government’s view, the public rights exception “ at a minimum allows Congress to create new statutory obligations, 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 Petitioner 21 (emphasis added; internal quotation marks omitted). Put plainly, all that need be done to dispense almost entirely with three separate constitutional provisions is an Act of Congress creating some new statutory obligation. And, the government continues, this case easily meets that standard because the proceeding against Mr. Jarkesy is one¶

“brought by the government against a private party” under a statute designed “to remedy harm to the public at large.” Id ., at 24 (internal quotation marks omitted).¶

The Court rightly rejects these arguments. See ante , at 19–21. No one denies that, under the public rights exception, 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]mperative necessity” of tax collection for a functional state had long caused governments to treat “claims for public taxes” differently from “all others.” 18 How., at 282. Others have theorized that “the core of the judicial power” concerns the disposition of the “three ‘absolute’ rights” “to life, liberty, and property.” Wellness Int’l Network, Ltd. v. Sharif , 575 U. S. 665, 713–714 (2015) (THOMAS, J., dissenting). Public rights, the theory goes, involve matters originally understood to fall outside this core. Id ., at 714. So, for example, “[a]lthough Congress could authorize executive agencies to dispose of public rights in land—often by means of adjudicating a claimant’s qualifications for a land grant under a statute—the United States had to go to the courts if it wished to revoke” that grant, which had become the owner’s private property. Id ., at 715. There are still other theories yet. See, e . g ., Stern , 564 U. S., at 489.¶

Whatever their roots, traditionally recognized public rights have at least one feature in common: a serious and unbroken historical pedigree. See Culley v. Marshall , 601 U. S. 377, 397–398 (2024) (GORSUCH, 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 customary 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 , 18 How., at 280. That’s why this Court has said ''a process of law . . . must be taken to be due process of law’ if it enjoys ‘the sanction of settled usage both in England and in this country.'' Culley , 601 U. S., at 397 (GORSUCH, J., concurring) (quoting Hurtado v. California , 110 U. S. 516, 528 (1884)).¶

With the public rights exception viewed in this light, the government’s invocation of it in this case cannot succeed. Starting with a ''presumption . . . in favor of Article III courts'' and their usual attendant processes, ante , at 18, we look for some “deeply rooted” tradition of nonjudicial adjudication before permitting a case to be tried in a different forum under different procedures, Culley , 601 U. S., at 397 (GORSUCH, J., concurring). We have upheld summary procedures for customs collection, for example, because they were consistent with both “the common and statute law of England prior to the emigration of our ancestors” and “the laws of many of the States at the time of the adoption of ” the Constitution. Murray’s Lessee , 18 How., at 280; see ante , at 14–15. But when it comes to the kind of civil-penalty 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 accords 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 comfortable invoking the public rights exception? To be fair, much of it may have to do with this Court. Some of our past decisions have allowed the government to chip away at the courts’ historically exclusive role in adjudicating private rights—and juries’ accompanying role in that adjudication. This process began, of all places, in an admiralty case.¶

In Crowell v. Benson , 285 U. S. 22 (1932), this Court faced a constitutional challenge to the Longshoremen’s and Harbor Workers’ Compensation Act of 1927. The Act directed employers to compensate employees for injuries occurring at sea. 44 Stat. 1426. The law further assigned primary responsibility for deciding liability disputes to an Executive Branch official, the deputy commissioner of the United States Employees’ Compensation Commission. Id ., at 1435–1437; Crowell , 285 U. S., at 42–43. The Court acknowledged that this regime empowered the deputy commissioner to decide in the first instance the monetary “liability of one individual to another.” Id. , at 51. The Court recognized that this amounted to a classic “private right” suit of the kind traditionally tried in court. Ibid . The Court even conceded that, under the law, the factual “findings of the deputy commissioner, supported by evidence and within the scope of his authority, shall be final”: An Article III court could not review the facts anew. Id. , at 46. But the Court upheld the scheme and its limited judicial review anyway.¶

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 reports on fact issues or damages. Id ., at 51. These reports are nonbinding and “essentially . . . advisory.” Ibid . Judges themselves remain the decisionmakers. In Crowell , the Court embraced the fiction that Executive Branch officials might similarly act as assistants or adjuncts to Article III courts. And because judges often adopt the proposed findings of their masters and commissioners, the Court surmised, Article III posed no bar to Congress taking a further step and requiring judges to treat the findings of Executive Branch officials as essentially “final.” Id ., at 46. “To hold otherwise,” the Court reasoned, “would be to defeat the obvious purpose of the legislation”: “to furnish a prompt, continuous, expert, and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination 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 exception. See Culley , 601 U. S., at 398 (GORSUCH, J., concurring). In deciding those matters, courts had long tolerated some flexibility in procedures, had long restricted appellate review of factual findings, and had always proceeded without a jury. Crowell , 285 U. S., at 45, 53.¶

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 government expressed concern at this development. Consider just two typical examples. Were an agency endowed with 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 permitted 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 committee opined, “to resolve any doubts concerning the constitutionality 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 making, investigation, prosecution, the advocate’s function, the judge’s function, and the function of enforcing the judgment, so that the whole proceeding from end to end is one to give effect to a complaint.” Report of the Special Committee on Administrative Law, 63 Ann. Rep. 331, 351 (1938).¶

The high-water mark of the movement toward agency adjudication 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 arising under any ''new statutory obligations,'' Brief for Petitioner 22 (quoting Atlas Roofing , 430 U. S., at 450). It is a view the government essentially espouses in this case. But without reference to any constitutional text or history to guide what does or does not qualify as a public right, that view has (unsurprisingly) proven wholly unworkable.¶

It did not take long for this Court to realize as much. Just 12 years later, in Granfinanciera, S. A. v. Nordberg , 492 U. S. 33 (1989), this Court cabined Atlas Roofing so narrowly that the author of Atlas Roofing complained that the Court had “overrul[ed]” it. 492 U. S., at 71, n. 1 (White, J., dissenting); see ante , at 23, n. 3. Far from endorsing the notion that any new statutory obligation could qualify for treatment as a public right, for example, the Court in Granfinancieria read Atlas Roofing as having “left the term ‘public rights’ undefined.” 492 U. S., at 51, n. 8. And since then this Court has, in one case after another, “adhere[d]” only to Atlas Roofing’s “general teaching” that Congress may constitutionally adopt “new statut[es]” assigning matters that indeed qualify as “public rights . . . to an administrative agency.” 492 U. S., at 51 (internal quotation marks omitted); see, e . g ., Stern , 564 U. S., at 489–490; Oil States , 584 U. S., at 345.¶

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 include 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. 564 U. S., at 504 (Scalia, J., concurring). And at one time or another, these factors have included the consideration of “the concerns that drove Congress to depart from the requirements of Article III.” Schor , 478 U. S., at 851. So, for example, we have asked whether insistence on “the institutional integrity of the Judicial Branch” would “unduly constrict Congress’ ability to take needed and innovative action pursuant to its Article I powers.” Ibid.¶

Today, the Court does much to return us to a more traditional understanding of public rights. Adhering to Granfinancieria , 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 Constitution settled long ago. Yes, a limited category of public rights were originally and even long before understood to be susceptible to resolution without a court, jury, or the other usual protections an Article III court affords. But outside of those limited areas, we have no license to deprive the American people of their constitutional right to an independent judge, to a jury of their peers, or to the procedural protections at trial that due process normally demands. Let alone do so whenever the government wishes to dispense with them.¶

This Court does not subject other constitutional rights to such shabby treatment. We have “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. , 487 U. S. 781, 795 (1988). We have rejected a framework for Second Amendment challenges that would balance the right to bear arms against ''other important governmental interests.'' District of Columbia v. Heller , 554 U. S. 570, 634 (2008). It is hornbook Fourth Amendment law that “[a] generalized interest in expedient law enforcement cannot, without more, justify a warrantless search.” Georgia v. Randolph , 547 U. S. 103, 115, n. 5 (2006). And even though the Sixth Amendment’s guarantee of a jury trial in criminal cases may have ''its weaknesses and the potential for misuse,'' Duncan v. Louisiana , 391 U. S. 145, 156 (1968), we continue to insist that it “be jealously preserved,” Patton v. United States , 281 U. S. 276, 312 (1930); see Ramos v. Louisiana , 590 U. S. 83, 110–111 (2020) (plurality opinion); Erlinger , 602 U. S., at ___ (slip op., at 18) (“There is no efficiency exception to the . . . Sixth Amendmen[t]”).¶

Why should Article III, the Seventh Amendment, or the Fifth Amendment’s promise of due process be any different? None of them exists to “protec[t] judicial authority for its own sake.” Oil States , 584 U. S., at 356 (GORSUCH, J., dissenting). They exist to “protect the individual.” Bond v. United States , 564 U. S. 211, 222 (2011). And their protections are no less vital than those afforded by other constitutional provisions. As American colonists learned under British rule, “the right of trial” means little “when the actual administration of justice is dependent upon caprice, or favour, [or] the will of rulers.” 3 Story §1568, at 426; id ., §1783, at 661. In recognizing as much today, the Court essentially follows the advice of Justices Brennan and Marshall, “limit[ing] the judicial authority of non-Article III federal 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 astonishing. 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 SOTOMAYOR, 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 regular 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 meaning? 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¶

12 (emphasis added). But the dissent’s approach to our precedents is like a picky child at the dinner table. It selects only a small handful while leaving much else untouched. To start, the dissent lingers briefly on Murray’s Lessee —but not long enough to explain the opinion’s conception of Article III, due process, or the extended historical inquiry that led the Court to conclude the collection of revenue concerned a public right. See post , at 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. v. Stranahan , 214 U. S. 320 (1909). Drawing on that decision, the dissent contends that “Congress [has] routinely ‘impose[d] appropriate obligations'' by statute and given ''executive officers the power to enforce'' them ''without the necessity of invoking the judicial power.'' Post , at 11 (quoting Stranahan , 214 U. S., at 339). Notably absent from the dissent’s account, however, is the decision’s discussion of Congress’s long-recognized and extensive authority over the field of immigration, the area of law at issue there. See id. , at 339. Unmentioned, too, is Stranahan ’s explanation that what links immigration to other public rights like “tariff[s], . . . internal revenue, taxation,” and “foreign commerce” is that, ''from the beginning[,] Congress has exercised a plenary power'' over them “because they all relate to subjects peculiarly within the authority of the legislative department.” Id. , at 334, 339.¶

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 peculiar powers when it comes to revenue and immigration? Why didn’t the Court simply announce the rule the dissent would have us announce today: that our Constitution does not stand in the way of “agency adjudications of statutory claims . . . brought by the Government in its sovereign capacity”? Post , at 4. The answer, of course, is that the Constitution 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 employees decide cases and inconvenient juries and traditional trial procedures go by the boards.¶

That my dissenting colleagues plow ahead anyway with their remarkable conception of public rights is all the more puzzling considering how regularly they have argued against that sort of sweeping concentration of governmental power. The dissenters have recognized that a “lack of standardized procedural safeguards” can leave government enforcement schemes “vulnerable to abuse” and individuals subject to coercive “pressure from unchecked prosecutors.” Culley , 601 U. S., at 405, 407 (SOTOMAYOR, J., joined by KAGAN and JACKSON, JJ., dissenting). They have contended that the Judiciary has an affirmative obligation to supply “meaningful remedies,” trials before judges and juries included, even when “Congress or the Executive has [already] created a remedial process.” Egbert v. Boule , 596 U. S. 482, 524–525 (2022) (SOTOMAYOR, J., joined by, inter alios , KAGAN, 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 government.” 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 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 declares 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 Government 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 inviolable sovereignty” (internal quotation marks omitted)). 2¶

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 permitting 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 v. Rahimi , 602 U. S. ___, ___ (2024) (GORSUCH, J., concurring) (slip op., at 6). But looking to original meaning and historical practice informing it is exactly how this Court proceeds in so¶

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2 The best the dissent can do is to observe that “Article III itself prescribes 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 working 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 executive agencies.¶

many other contexts where we seek to honor the Constitution’s demands—including, notably, when we seek to ascertain the scope of the criminal jury-trial right and the defendant’s attendant right to confront his accusers. See Erlinger , 602 U. S., at ___–___ (slip op., at 19–20); Crawford v. Washington , 541 U. S. 36, 50 (2004). What’s more, this approach has the virtue of “keep[ing] judges in their proper lane” by “seeking to honor the supreme law the people have ordained rather than substituting our will for theirs.” Rahimi , 602 U. S., at ___–___ (GORSUCH, J., concurring) (slip op., at 4–5); see Crawford , 541 U. S., at 67.¶

It is hard, as well, to take seriously the dissent’s charges of unworkability and unpredictability. At least until today, the dissenters supported procedural protections for those in the government’s sights in civil as well as criminal cases. What kind of protections? Often, they have argued, it depends 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 , 601 U. S., at 413 (opinion of SOTOMAYOR, J.) (internal quotation marks omitted). As we have seen, that was essentially the course some pursued, too, when it came to the public rights exception in the fallout from Atlas Roofing . See Part III–B, supra . But that kind of ''we know it when we see it'' approach to constitutional rights, post , at 21, can hardly claim any serious advantages when it comes to workability or predictability.¶

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 construction. 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 stands as an outlier in our jurisprudence—with no apparent support in original meaning, at odds with prior precedent, and inconsistent with later precedent as well. See ante , at 25, n. 4; Part III–B, supra . Meanwhile, the Court’s alternative construction of Altas Roofing fits far more comfortably with all those legal sources. In that respect, the majority’s approach is of a piece with Granfinanciera ’s similar 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 conforms it to the mainstream of our precedents. Groff v. DeJoy , 600 U. S. 447, 474 (2023) (SOTOMAYOR, J., concurring). 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 successors 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 discussion, the dissent necessarily endorses that decision’s exceptionally narrow conception of the Seventh Amendment. See post , at 6. After all, as public rights expand, so too the jurytrial 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 recognized at common law, but in “ all suits which are” of legal, as opposed to “equity [or] admiralty[,] jurisdiction.” Parsons , 3 Pet., at 447 (emphasis added); see Part II–B, supra . This Court repeated that understanding of the Amendment until well into the 1970s, noting, for example, that “the applicability of the constitutional right to jury trial in actions enforcing statutory rights” was “a matter too obvious to be doubted.” Curtis v. Loether , 415 U. S. 189, 193 (1974) (internal quotation marks omitted); accord, Pernell v. Southall Realty , 416 U. S. 363, 375 (1974) (the Seventh “Amendment requires trial by jury in actions unheard of at common law”). And the Court rejected the notion that a statute must present “a close equivalent” to a common-law cause of action; the jury-trial right attached, we said, so long as the “action involve[d] rights and remedies of the sort traditionally enforced in an action at law.” Ibid.¶

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.” 430 U. S., at 449 (emphasis added). That cramped construction of the Seventh Amendment was, of course, a key move in Atlas Roofing . For without it, the Court would have been hard pressed to suggest the public rights doctrine permits Congress to route any ''new cause of action'' for adjudication before agencies where juries do not sit. Post , at 14 (quoting Atlas Roofing , 430 U. S., at 461).¶

Almost immediately, however, the Court rejected Atlas Roofing ’s analysis, not just with respect to public rights doctrine but the Seventh Amendment, too. Returning to our mainstream precedents, the Court reaffirmed the applicability of the Seventh Amendment to new causes of action, first in Tull v. United States , 481 U. S. 412 (1987), and then in Granfinanciera . See ante , at 8–9. And by 1990, our case law had come full circle, announcing once again what has always been true: that “[t]he right to a jury trial includes more than the common-law forms of action recognized in 1791.” Teamsters v. Terry , 494 U. S. 558, 564.¶

Today, the Court respects and follows this longstanding message in our Seventh Amendment precedents. The dissent 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 nothing to do with respect for precedent but much more to do with a “power grab”: Holding the government to the Constitution’s promise of a jury trial, the dissent insists, would impose “constraints on what,” in its view, “modern-day adaptable governance must look like.” Post , at 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 v. Spendthrift Farm, Inc. , 514 U. S. 211, 239 (1995). Ones that ensure even the least popular among us has an independent judge and a jury of his peers resolve his case under procedures designed to ensure a fair trial in a fair forum. In reaffirming all this today, the Court hardly leaves the SEC without ample powers and recourse. The agency is free to pursue all of its charges against Mr.¶

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.¶