On a Supreme Court dominated by six Republican appointees, there isn’t much the Democratic minority can do to affect outcomes — especially in the biggest cases. So one function of oral argument these days is for those Democratic justices to air views that won’t appear in majority opinions.
Justice Elena Kagan reminded us of that Wednesday, with questioning that continued to highlight her position that the court is asserting power that belongs to Congress and is willing to discard precedent in the process. The case, SEC v. Jarkesy, is one of three appeals this term attacking the so-called administrative state that regulates, among other things, the environment and business. The latter is directly implicated here in the case of a hedge fund manager accused of misleading investors. George Jarkesy’s case raises several issues, as MSNBC columnist Jessica Levinson explained:
Thus, the Supreme Court considered three questions Wednesday: whether administrative agencies, like the SEC, can adjudicate certain civil actions that seek monetary damages or whether such cases need to be heard before juries in a district court; whether Congress can allow administrative agencies the option of bringing actions before administrative law judges or district judges under the nondelegation doctrine, which prevents Congress from delegating its legislative power to executive agencies; and whether presidents must be able to remove officials such as administrative law judges at will or whether they can enjoy additional job protections.
How the court resolves the case could affect not only securities enforcement but also how other agencies work — hobbling them being a longtime goal of the conservative legal movement that has worked to assemble the current high court majority. The justices already heard argument this term in a case attacking the Consumer Financial Protection Bureau — which likewise featured Kagan warning about lurking dangers in the case — and in January…
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