Supreme Court conservatives believe witch hunters and slaveholders perfected human governance

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.

Justice Elena Kagan pointed out that Congress enacted securities laws in response to modern financial crises specifically because founding-era common law actions were insufficient to prevent widespread harm. “When you say, well, we should go back to the common law suits that were brought 200 years ago in the courts of Westminster, is Congress’s judgment—after the Depression, after the Savings and Loan Crisis, after the Great Recession—is Congress’s judgment that more powers were needed within an administrative agency entitled to no respect?” she asked.

Justice Ketanji Brown Jackson also struggled to make sense of Jarkesy’s proposed standard, which represents a break from established law. Modern financial regulations created new statutory duties that bear no resemblance to two-century-old common law claims, she pointed out—here, among others, the duty “not to employ any device, scheme, or artifice to defraud in the context of securities transactions.” And “if it’s a new statutory duty,” said Jackson, “we’ve held for forever that Congress can assign it to the administrative agency.” In other words, perhaps Congress can address new problems in ways that did not exist in 1791.

The practical impact of a conservative decision here will be that overnight, the markets will become considerably more prone to fraud and petty swindles. Either regulatory agencies and federal courts will all have to expand dramatically in order to hear all of the securities fraud cases and other regulatory infractions, jury by jury, or the SEC and other regulatory agencies will have to drop the majority of their cases so that they can focus only on the worst handful.

We know from listening to Republican and conservative caterwauling about efforts to undo their slow purge at the IRS that that’s the whole point. The conservative legal framework hasn’t had many consistent through lines since Antonin Scalia beat “originalism” to death with a shovel and buried it on a wealthy patron’s prairie estate, but conservative jurisprudence has been quite reliable in providing for one particular outcome: If it allows the upper classes to cheat, defraud, and steal with less effort and less risk of consequence than they had beforehand, that’s what conservative courtrooms will choose every time. It’s uncanny.

What the nonconservative justices are so roused about, albeit in more dignified language than the rest of us need to abide by, is this increasingly glib rightist notion that 16th- to18th-century common law does not just inform U.S. laws passed from the Constitution onward, but preempts them—such that Congress, allegedly, has no power to write any law that would conflict with what a misogynistic English witch hunter or slave-murdering colonial plantation owner would abide, back in the days when legal rights were conferred to white landholding men and only white landholding men.

It has become, on the part of the Federalist Society lumps that now fill so much of the bench, something of a kink. It is the legal equivalent of a foot fetish. If you have such a fetish, we’re not going to judge here, but it’s more than a bit odd seeing men like Chief Justice John Roberts run his fingers across a reference to 1791 common law while crooning, “Oh yeah, that’s the stuff, that’s how we likes it.”

In this telling of the American story, the American people themselves have no agency—ever. Congress has no agency, and neither do the courts. No law or regulation can exist that did not exist before the Constitution’s founding, barring a new amendment that explicitly encodes each and every one of them—and the amendments, too, are looked on with extreme skepticism.

But, fascinatingly, the fetish only applies in one direction. Drug-induced abortion was commonplace at the time of the Constitution’s writing, with now-famous recipes for abortifacients published for public use. This history proves the modern conservative fetish for banning abortion outright and for barring the mailing of abortion drugs across state lines to be explicitly contradictory to the “founders’ intent” and so is studiously ignored. Immigration was largely unregulated until the 1870s, so conservatives looking for support for each new draconian and xenophobic measure have had to similarly reinvent alternative histories.

The end results do, however, look much like the English versions of law and order that the founders were trying to recode into something better. If you’re white, male, and rich, the law exists to thwart your enemies; if you’re none of those things, the law exists to thwart you.

The Supreme Court’s conservative flank may well get their way with this notion that government agencies regulating markets that did not exist, structured in ways 18th-century wifebeaters and slave-rapers never envisioned, cannot include punitive measures except with jury trials attached. But it is distinctly abnormal, it goes against 200 years of well-solidified American laws written out since 1791, and it is bizarre in premise because it has long, long been established that participating in specific public markets and infrastructure comes with an agreement to abide by the regulation-specified rules—or you forfeit your right to participate.

When you fail a driver’s test, you are not given the right to a jury trial to determine whether hitting a tree and injuring your instructor is or isn’t a valid reason to deny your license. Purchasers of our public airwaves are expected to abide by certain rules, including a great many technical specifications to ensure none of the licensers are bleeding into the spectrums of the others. It is a given that federal regulators are allowed to respond by levying fines against the cheats. Fines for illegal hunting and fishing, fines for disabling smoke detectors or otherwise violating building codes, fines for false advertising—the list is endless.

Participating in regulated market activities is optional, and is not a right. There is no element of the law that requires you to participate, but participating does require you to abide by the regulations as they are spelled out. The aforementioned Jarkesy knew when he entered securities markets that defrauding investors would result in regulatory demands to return what was stolen and pay a fine for remediation, and implicitly agreed to it when he filled out each regulation-required bit of paperwork.

Meanwhile, Americans are left to rot in state and federal jail cells for indefinite periods of time before their supposed jury trials ever take place. Police departments around the nation fund themselves by seizing cash, cars, and anything else that they suspect might be attached to an unknown and unproven crime. Large-scale polluters seize properties with abandon, each time a new cloud of irritants or dribble of toxins seeps out into neighboring communities. But this is what the Federalist Society ranks want to litigate: whether or not the people you’ve invested your money with are allowed to make off with it if you’re not also rich enough to invest in a full-scale lawsuit to claw it back.

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