Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. We will be off on Thursday and Friday this week for the holiday. Here’s the Wednesday morning read:
The justices will hear oral argument today in Securities and Exchange Commission v. Jarkesy. Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Wednesday morning read:
The Supreme Court on Monday afternoon denied a request from the leaders of the Arizona legislature to put on hold an order that would require them to be deposed about the legislature’s enactment of voting laws that make it more difficult to register to vote. In a brief unsigned order without any noted dissents
, the justices turned down an emergency filing from Ben Toma, the speaker of the Arizona House of Representatives, and Warren Petersen, the president of the Arizona Senate.
The laws at the center of the dispute were enacted in 2022. They require would-be voters to provide proof of U.S. citizenship or face penalties, such as a ban on voting in most elections or an outright bar on voting by mail. The Biden administration and other plaintiffs, including the Democratic National Committee and the Arizona Democratic Party, went to federal court to challenge the laws, arguing that they violated (among other things) the 14th Amendment’s guarantee of equal protection and federal voting laws.
Toma and Petersen joined the case to defend the laws after the state’s attorney general, Democrat Kris Mayes, declined to do so in full. The challengers then sought discovery from them, including to depose them about the legislature’s intent in passing the laws. Toma and Petersen argued that an order requiring them to appear for a deposition would violate the legislative privilege – that is, the idea that legislators are shielded from both criminal and civil liability, as well as being compelled to answer questions or produce documents, regarding anything that is an integral part of the legislative process.
The district rejected that argument, ruling that Toma and Petersen had waived their privilege when they opted to join the case, and both the district court and the U.S. Court of Appeals for the 9th Circuit held that the depositions could go forward.
Toma and Petersen came to the Supreme Court on Nov. 20, asking the justices to put the depositions and discovery on hold to give them time to file a petition for a writ of mandamus – an order directing the lower court to reverse its order on the legislative privilege question. They told the justices that the district court’s “unprecedented ruling will chill both the atmosphere for all legislators to freely express their views during the legislative process and the ability and willingness of present and future legislative leaders to participate in litigation to defend the constitutionality of state laws.”
The Democratic National Committee and the Arizona Democratic Party urged the justices to turn down the request. They emphasized that the discovery requests do not seek information about the legislators’ personal motives, but instead about the legislature’s intent, which “is a proper subject for discovery because plaintiffs’ claims in this litigation include that the challenged laws violate the Equal Protection Clause; one element of such a claim is discriminatory intent or purpose by the legislature.”
And Toma and Petersen have other options besides a writ of mandamus, the Democrats argued. For example, they could decline to “comply with the discovery order and then appeal any resulting sanctions or contempt order.”
There are things to like about the Code of Conduct
that the Supreme Court promulgated earlier this month. It is a bona fide code of conduct—one that, in the main, tracks the Code of Conduct for U.S. Judges
. It follows the same structure, features the same five canons, and includes most of the same provisions that are worded in the same way. Some rules (like the duty to afford litigants their full right to be heard according to law, and exceptions to the duty to avoid communicating with one party to the case without the other party’s knowledge) have reasonably been excluded because they are relevant primarily to the lower courts. And it is not fair to condemn the new code as toothless because it includes no enforcement mechanism. Like the ABA Model Code
, the most that codes do is cross-reference separately established disciplinary processes and highlight the role that codes play in those processes. One can debate the virtues of creating a disciplinary process for the Supreme Court, but its absence here is no fault of the code itself.
That said, there are some problematic differences between the new SCOTUS Code and the Code of Conduct for U.S. Judges. Although the latter code does not (and need not) include disciplinary processes as such, Canon I declares that judges should “maintain and enforce” high standards of conduct, while Canon 3(B)(6) adds that “[a] judge should take appropriate action upon receipt of reliable information indicating the likelihood that a judge’s conduct contravened this Code.” The new SCOTUS Code, in contrast, states that its justices should “maintain and observe” high standards of conduct and omits any duty to take action in response to known code violations by other justices. Such rules may have been omitted to preserve collegial relations among the justices, but they did so at the expense of diminishing confidence in the court’s commitment to taking its code seriously.
The SCOTUS Code’s disqualification provisions begin with new language that a “Justice is presumed to be impartial,” which, while consistent with precedent, has no logical place in a code designed to guide judges on their ethical responsibilities. The next clause in the same sentence adds that a justice “has an obligation to sit unless disqualified,” which is redundant of a clause in the previous section that a justice “should participate in matters assigned, unless disqualified,” but highlights the court’s ongoing interest in resurrecting the “duty to sit” as a turn of phrase that Congress sought to abrogate in 1974
The new SCOTUS Code qualifies the statutory duty to disqualify when a justice’s “impartiality might reasonably be questioned” by adding language interpreting it to mean that “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” While consistent with interpretive precedent, this clause is cherry-picked to omit guidance that the “reasonable person” is not a judge but an outside observer
, who is less inclined than a judge to credit the judge’s impartiality.
Finally, the new SCOTUS Code adds that “[t]he rule of necessity may override the rule of disqualification.” While consistent with precedent in the abstract, the court’s commentary accompanying the code strongly implies that the rule of necessity has some bearing on minimizing the need for tie votes on the court. The rule of necessity has been interpreted to mean that “when all are disqualified, none are disqualified”
— meaning, for example, that when all justices have a disqualifying interest in the outcome of a case, the need for judicial review trumps the need for disqualification. Four-to-four ties are minimized by the duty to preside unless disqualified, but there is no “necessity” for nine justices to participate, because there are well-established procedures in place to resolve cases
that end in a tie vote. To imply that the rule of necessity adds heft to non-disqualification on the Supreme Court because of the “need” for all nine justices to participate is deeply troubling. It invites the alarming spectacle of the decisive vote in a 5-4 case being cast by a justice whose impartiality is so deeply in doubt that it would force the disqualification of a circuit or district judge subject to the identical statutory standard.
Ultimately, whether the SCOTUS Code will diminish the frequency with which its justices are embroiled in controversies over their conduct depends on whether the court takes its new code seriously. It does not bode well that the court omitted from its code the wealth of commentary included in the Code of Conduct for U.S. Judges, which offers important guidance to judges serious about their ethical responsibilities. Nor does the preamble to the new SCOTUS Code inspire confidence: it asserts that the code simply summarizes ethical restrictions that the court has long followed and seeks to “dispel” a “misunderstanding” to the contrary. Juxtaposed against this disheartening claim that the code’s raison d’être is to get everybody off its back, the SCOTUS Code concludes in a more productive vein, listing steps that the court is taking and will take to provide guidance and training on “recurring ethics and financial disclosure issues.” These subtly mixed messages betray an ongoing tension within the court itself over the limits of Supreme Court exceptionalism and the extent to which its justices perceive themselves as a part of or apart from the rest of the American judiciary.
Tuesday’s argument in McElrath v. Georgia
will take the justices back to law-school basics – the case could be a question on a law-school examination in criminal law. The facts are simple. Damian McElrath was prosecuted for several crimes after he stabbed his adoptive mother, Diane McElrath, to death in 2012. The case went to trial, where the jury returned a verdict that, among other things, found McElrath not guilty by reason of insanity on a charge of malice murder – the most serious murder charge in Georgia, and the rough equivalent of a first-degree murder charge in most states, requiring the intent to kill someone. At the same time, the jury found McElrath guilty but mentally ill on charges of felony murder (for felonies that result in a death, even if the defendant did not actually kill anyone) and aggravated assault. Now, recognizing that reasonable minds (and jurors) could differ about the quality of a person’s insanity or mental illness at any given time, it is not possible under the applicable definitions for someone at the same time both to be so insane as to be immune from criminal responsibility for a specific act and to suffer from a sufficiently mild mental illness to be criminally responsible for the same act. To be sure, it is possible that the jury wanted to acquit McElrath on the more serious offense and hold him responsible for the less serious offense, but the findings the jury returned did not offer a coherent factual justification for that result. The state courts responded by characterizing the inconsistent verdicts as “repugnant,” vacating both verdicts, and authorizing a second trial on all counts.
McElrath’s argument is as simple as you would expect if you’d ever read any Supreme Court decisions about double jeopardy: Once a jury has acquitted a defendant, the same sovereign cannot ever retry the same defendant for the offense of which the jury acquitted him. Period, full stop. Because that is what happened here, he says, the decision of the Georgia Supreme Court should be reversed.
To be sure, you could say that there is not a case precisely like this one, but McElrath can quote a long line of Supreme Court opinions that state the rule without any apparent qualification. Moreover, as it happens, several of those cases involve inconsistent verdicts, which necessarily reflected (like this one) logically inconsistent factual findings. Although the Supreme Court often validated outcomes that limited the effects of a set of inconsistent verdicts, none of those cases permitted a retrial on a charge for which a jury had rendered a verdict of acquittal, however factually implausible that verdict might have been.
For Georgia’s part, it points to the state’s undoubted right to define its own criminal law and procedural system. Georgia contends – although it doesn’t match very well with what its state supreme court said – that under Georgia law the twin findings of the jury are so “repugnant” that they don’t amount to a verdict at all, but are rather just another step in the trial process that has not yet been completed by a verdict of guilty or not guilty. Because the jury has not yet returned a verdict, Georgia reasons, the double jeopardy rule does not apply.
To my mind, that argument has a little of an Alice in Wonderland
feel to it – the word “verdict” means just what Georgia chooses it to mean, no more and no less. So, in this case the state can tell us that in Georgia the word “verdict” does not include the ruling that a jury makes when a foreperson stands up in open court and tells the assembled audience that “We find the defendant not guilty.” Of course, as Humpty Dumpty responded to Alice, the ultimate question is “which is to be master” of the word in the end. My sense is that the justices are likely to think that they are “master” on this particular question and that they will regard the jury’s finding that McElrath is not guilty as the kind of “verdict” to which the double jeopardy protection attaches.
The argument on Wednesday in Securities and Exchange Commission v. Jarkesy
will present a remarkable spectacle of three entirely distinct constitutional challenges to wholly disparate attributes of the SEC. Ordinarily, the ability of the justices to control their docket would allow them to wait on each question for the development of a circuit conflict and select a suitable case in which to resolve each issue. But in this case a bold (I did not say “rogue”) panel of the U.S. Court of Appeals for the 5th Circuit accepted all three arguments and invalidated three aspects of the SEC’s operations. To leave the decision unreviewed would force Congress to revise substantially the affected portions of the securities laws solely based on the opinion of one divided lower court panel – hence, the Supreme Court’s buffet of constitutional law topics on Wednesday morning. Because the arguments are so far-ranging and distinct, an article of reasonable length can offer only the barest summary of the principal arguments on each point. Suffice it to say that both sides have support from large groups of prominent amici.
The case stems from an administrative proceeding that the SEC brought against hedge fund founder and investment adviser George Jarkesy in 2013. The SEC’s in-house enforcement proceedings eventually found that Jarkesy and his firm had committed securities fraud, and it ordered them to pay $300,000 in fines and to repay nearly $700,000.The first question before the justices is whether Congress constitutionally authorized the agency to adjudicate administrative proceedings that impose monetary penalties. That raises a question under the court’s deeply fraught doctrine of “public rights,” which offers an exception to the Seventh Amendment jury trial requirement. Under the Seventh Amendment, most defendants in civil cases seeking monetary damages have a right to a jury trial; the exceptions generally require establishing that the type of action in question could have been brought in the 18th century (when the Seventh Amendment was ratified) in an equity court without a jury. Within that framework, the public rights doctrine is the doctrine that allows administrative agencies, operating without a jury, to impose monetary penalties. When it applies, it is because the right in question is a “public” right that would not have required the kind of “[s]ui[t] at common law” to which the Seventh Amendment applies.
The government’s view in this case is that the Constitution affords Congress a broad authority to create new obligations by statute, and that because those statutory obligations were unknown to the common law, they are public rights that Congress can assign to an administrative tribunal without a jury. It should be enough to validate the congressional scheme that the features of the securities cause of action here do not match the elements of the 18th century cause of action for fraud.
In contrast, Jarkesy broadly calls for the eradication of the public rights doctrine, arguing that one of the main “catalysts” and “flashpoints” for the American Revolution was the British crown’s practice of trying claims for statutory penalties in admiralty courts without a jury. Jarkesy does contend in passing that the particular features of the government’s claims against him are much more similar to common-law fraud claims than those in the early public-rights cases. But his principal argument is that the Supreme Court in recent years has rejected those cases (“wiping out the[ir] last vestiges”) in a line of cases involving the bankruptcy code, so that now Congress’s power to assign new statutory causes of action to administrative tribunals (without juries) is limited to cases in which requiring a jury trial would “dismantle the statutory scheme.”
The second question is whether Congress can delegate to the SEC the power to decide whether a case should be pursued as an administrative proceeding or as a civil enforcement action – that is, within the agency or in a federal district court. The government contends that the court’s decisions repeatedly and firmly have recognized congressional power to vest decisions about the enforcement of civil and criminal proceedings in the executive branch. For the government, Congress’s legislative power under Article I of the Constitution is “to determine the range of enforcement mechanisms” that should be available to the agency, while the executive branch’s power under Article II is “to choose among permissible enforcement mechanisms in particular cases.”
Jarkesy’s discussion of that point is remarkably concise – less than five pages of a 73-page brief. He reasons that the power to assign a particular claim to an Article I (that is, administrative) tribunal is “quintessentially legislative in nature.” Thus, Congress could create two separate causes of action, assigning one to an Article I tribunal and another to an Article III tribunal (a court), but it cannot create a single cause of action and allow the agency to decide in which tribunal it should be brought. Because the statute provides “no intelligible principle to constrain” the agency’s decision between tribunals, it impermissibly delegates the legislative power to the agency.
The third question in the case is whether the Constitution allows Congress to give the SEC’s administrative law judges protection from removal. Here, the key authority is the Supreme Court’s 2010 decision in Free Enterprise Fund v. Public Company
, which held that Congress impermissibly limited the president’s executive power when it imposed “multiple” levels of tenure protection – so that an inferior officer could only be removed for cause by a principal officer, who could also be removed only for cause. Chief Justice John Roberts reasoned for the majority in that case that the president “cannot” fulfill his constitutional obligation to “‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers that execute them.”
Jarkesy has a simple argument here, because it is difficult to contest that the SEC’s administrative law judges have two tiers of protection against removal without cause. The government’s argument, essentially, is that Free Enterprise Fund applies only to “policymakers,” not to “adjudicators.” Roberts left that question open in Free Enterprise Fund, and the government pleads for an answer in its favor in this case, arguing that Congress surely can offer the agency more “leeway” to protect adjudicators. In substance, it is a plea that the administrative state requires tenure protection for adjudicators to provide any semblance of a fair process for adjudicating claims brought by the agency. The government pointedly notes that administrative law judges have had such protections since the original adoption of the Administrative Procedure Act shortly after World War II, and it decries the widespread disruption affirmance would wreak.
The summary above should make it clear that a complete affirmance of the 5th Circuit’s decision probably would be the most important administrative law decision of the last half-century. That suggests of course a pretty strong likelihood that several of the justices will be reluctant to go nearly so far. The argument should give a lot of insight as to which of the three challenges is likely to survive.
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. The justices will hear oral argument in Brown v. United Statestoday. Here’s the Monday morning read:
The double jeopardy clause of the Fifth Amendment generally says that the government gets only one chance to convict a defendant of a crime: If a jury finds a defendant not guilty, then the government has lost its chance to convict that defendant of that offense. McElrath v. Georgia
, in which the justices heard argument on Tuesday, presents an unusual twist on that rule. The jury in this case faced a defendant, Damian McElrath, with a substantial background of mental health issues who committed a horrific crime (stabbing and killing his mother). Faced with a variety of charges, the jury found on the one hand that McElrath was not guilty by reason of insanity on the most serious charge (“malice murder” under Georgia law) but at the same time guilty on the lesser charge of felony murder (causing death in the commission of a felony).
Ordinarily, the acquittal on the most serious charge, malice murder, would mean that Georgia never could try McElrath again on that offense. In this case, though, the Georgia Supreme Court said that the two verdicts were so inconsistent that it could throw them both out and let the state have a second try at prosecuting McElrath. Tuesday’s argument suggests that few if any of the justices are going to accept the state’s argument.
The dominant feature of the argument was Justice Neil Gorsuch’s fervent and repetitive insistence that Georgia’s approach could not be reconciled with the Constitution and centuries of American tradition. Among other things, he explained that for“230 years in this country’s history, we have respected acquittals without looking into their substance and without looking into how they fit with other counts and said a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system, and we do not ever talk about whether they make sense to us.”
For Gorsuch, the impropriety of second-guessing acquittals is foundational: “They may be products of compromise. They may be inconsistent with verdicts on other counts. We don’t question them.”
To be sure, Gorsuch was far from alone in his assessment. Justice Sonia Sotomayor, for example, told Georgia Solicitor General Stephen Petrany bluntly: “I don’t know how this doesn’t fit [our] definition of what an acquittal is,” reasoning that she could not countenance invalidating anything that rose to the level of an acquittal.
For Justice Elena Kagan, the central point was the jury’s basic right to compromise or offer leniency. At one point, she commented to Petrany that “[o]ne possibility is that the jury made a humdinger of a mistake. And another possibility is that the jury made no mistake at all but instead decided to compromise something out or decided to show leniency of a kind that it is within the right of a jury to show. …. It’s the exact same thing that you’re asking us to look into, which we always said we will not look into.”
When Justice Kavanaugh suggested a general agreement with that perspective, Gorsuch swept in again, commenting that he agreed with Kavanaugh that“Justice Kagan has put her finger on it. The minute you admit it could be a product of leniency or compromise, we’re done, aren’t we?…. Because then we have to respect that verdict regardless of whether we think it’s rational or what we would do. It’s supposed to be a check on us judges and you prosecutors.”
That’s not to say it is absolutely clear that every justice will agree that the case is this simple. Justice Samuel Alito, for example, asked a lot of questions about a Missouri procedure (apparently common in several Midwest states) in which a trial judge responds to an apparently inconsistent verdict by sending the jury back for more deliberations. That of course did not happen in McElrath’s case, in which the jurors were thanked for their service, dismissed, and sent on their way with every reason to think that the trial had concluded.
My pretty strong expectation is a relatively short and unanimous opinion reversing the Georgia decision, casting no doubt on the constitutionality of the “Missouri” procedure or the various other hypotheticals the justices raised at the argument. With no obvious support for what Georgia did in this particular case, it would seem an easy task to craft an opinion narrow and simple enough to dispose of the case without protracted debate.