Notice & Comment

Jarkesy and Judicial Aggrandizement, by Allen Sumrall and Beau J. Baumann

On Thursday, the Supreme Court decided SEC v. Jarkesy. The conservative appointees banded together in a 6-3 ruling, concluding that the Seventh Amendment entitles defendants to an Article III jury trial in SEC civil enforcement proceedings. First, John Roberts writes that the relevant SEC enforcement actions implicate the Seventh Amendment because the agency’s antifraud provisions mirror common law fraud. Second, he found that the SEC enforcement actions do not trigger the public-rights exception to the Seventh Amendment’s jury trial requirement. And Roberts also attempted to distinguish the SEC enforcement actions from the holdings in Atlas Roofing Co. v. Occupational Safety and Health Review Commission. Roberts left untouched many whackier Fifth Circuit holdings.

While many commentators will spend hundreds of pages analyzing the merits of the outcome–whether the majority properly dealt with Atlas Roofing or made coherent work of the public-rights doctrine–our point is different. We want to explore the claim Sonia Sotomayor makes in dissent about “judicial aggrandizement.”[i] In dissent, Sotomayor makes an important observation that has long been absent from the pages of the U.S. reports: the suggestion that the federal judiciary, but especially the Supreme Court, can itself threaten the separation of powers with its decisions. What we’re seeing in case after case is that there are two separate conceptions of the separation of powers emerging in the Roberts Court. This split affects the merits of individual cases, but it also represents a bigger fight over the Court’s trajectory and its relationship to the political branches. 

Writing for herself, Elena Kagan, and Kentanji Brown Jackson, Sotomayor contends that, the majority’s legal errors aside, the Court’s “ruling reveals a far more fundamental problem: This Court’s repeated failure to appreciate that its decisions can threaten the separation of powers.” Sotomayor locates the majority’s opinion in a “disconcerting trend” where the Court, in separation-of-powers disputes, “tells the American public and its coordinate branches that it knows best.” According to Sotomayor, the majority is guilty of a “power grab,” because “[j]udicial aggrandizement is as pernicious to the separation of powers as any aggrandizing action from either of the political branches.” Sotomayor concludes with a delicate but important warning that is deeply at odds with many classic defenses of the judiciary: “The American People should not mistake judicial hubris with the protection of individual rights.”

Of course, Sotomayor disagrees with Roberts’s majority opinion on the merits of the constitutional question, and whether the Court’s public-rights doctrines dictate the outcome. But Sotomayor’s claims highlight much deeper–and more interesting–disagreement with Roberts and the majority. 

This discussion implicates the concept of “judicial aggrandizement,” that, with Josh Chafetz of Georgetown Law, we have explored in our recent and ongoing research. We have defined judicial aggrandizement as the “successful deployment of ideas and norms that reinforce the judiciary’s role as the final arbiter of political disputes at the expense of other governing institutions.” Judges can use judicial aggrandizement to empower the judiciary because it reinforces the idea that the courts are uniquely well-suited to resolve political disputes. Frankly, one of us (Beau) is surprised because he never expected the idea of judicial aggrandizement to be incorporated into judicial opinions, much less with this immediacy. But with Jarkesy, Sonia Sotomayor joins Kagan’s[ii] and Jackson’s[iii] recent adoption of “judicial aggrandizement” as a theme with an (unrealized) potential for reconfiguring our conceptions of the separation of powers.

Judicial aggrandizement has a role in Jarkesy at two different levels–one on the merits and the other as a broader pattern in Roberts Court jurisprudence. The first level has to do with the meat of the case. The case turns on the Seventh Amendment’s jury trial guarantee. Understanding judicial aggrandizement helps us better understand Robert’s opinion, but it also helps elucidate the parties’ positions. As many scholars have documented, the Founders favored legislatures and juries not as ends in themselves, but as tools of collective self-government.[iv] But Roberts provides a different view of the Seventh Amendment. In his majority opinion, Roberts concludes that the claim at issue does not fall within the public-rights exception to the Seventh Amendment’s jury trial requirement. Roberts’ reasoning is key. He states that the “Constitution prohibits Congress from withdrawing from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law.” Once a suit that is the subject of a suit at common law is “brought within the bounds of federal jurisdiction,” he writes, “an Article III court must decide it, with a jury if the Seventh Amendment applies.” But then Roberts makes a revealing statement: “These propositions are critical to maintaining the proper role of the Judiciary in the Constitution.” The “judicial power” cannot be “shared with the other branches,” Roberts reasons. If the SEC were lawfully to adjudicate this claim (without a jury), it apparently would be exercising “judicial power,” something that the Constitution reserves to the judiciary. 

That’s very straightforward judicial self-aggrandizement. Roberts takes a right that elevates the jury as an instrument of self-government and transforms it into a judicial entitlement. Note the rhetorical work of this framing: Roberts is elevating the judiciary above the separation of powers. By understanding this rhetorical move, we avoid being distracted from the other side of the argument. Some commentators on the legal right have suggested that the case is no big deal or an indication of the left’s disdain for monied interests. After all, who doesn’t like juries? But one view of the controversy–the one Roberts obscures through judicial self-aggrandizement–looks different. The opposition to the result in Jarkesy isn’t a left-wing rejection of juries or a hatred of hedge fund bros. Instead, some critics of the Jarkesy decision just think Congress should have broad authority to identify other means of collective decision making where it would advance the project of communal self-rule.[v] Avoiding that conversation in favor of a juristic spin on the Seventh Amendment is part of the magic that judicial self-aggrandizement can perform.

Second, Jarkesy implicates judicial aggrandizement in a separate and arguably more consequential way. Sotomayor and Roberts adopt sharply different views of the separation-of-powers system and the Court’s role in that system. Roberts sees the separation of powers as a rule designed to protect the integrity of a static institutional framework, and sees the judiciary as its arbiter and protector. That’s judicial review, after all. By contrast, Sotomayor’s dissent makes an insightful and refreshing claim that is both entirely obvious but also woefully underappreciated. For Sotomayor, the judiciary is a participant in the Constitution’s separation-of-powers system, and can aggrandize itself in that system. Implicit in Roberts’s opinion is the idea of the courts as separation-of-powers police. Implicit in Sotomayor’s dissent is the idea that courts, in fact, are themselves institutions fighting for outcomes and the power to decide.[vi]

For Roberts, then, the Court itself is absent from the picture. The Supreme Court exists as a background actor protecting the sanctity of self-contained boxes of powers that dare not be mixed. But this vision of the separation of powers conflates the basic function of judicial review with an aggrandized vision of the judiciary. Roberts’s idea of the separation of powers aggrandizes the judiciary by suggesting that it must police the separation of powers and by implying that the judiciary cannot threaten the health of the separation-of-powers system except perhaps by reaching conclusions Roberts believes to be wrong.

By contrast, Sotomayor’s dissent situates the judiciary as a player in the separation-of powers-system. It correctly notes that courts can aggrandize themselves just like any other branch of government. Courts can empower themselves by suggesting that their vision of the constitutional system is the only one, that they are uniquely qualified to settle political disputes, and that they are the expert enforcers of the constitutional system. Of course, some attempts at judicial aggrandizement are normal and expected in a governing system designed with interbranch agonism in mind, but Jarkesyevidences a judicial aggrandizement so deep that it goes almost unnoticed as it empowers the courts. 

But Sotomayor undercuts her argument by offering a confusing alternative. She explains that she dissents because “the Court fails to act as a neutral umpire when it writes established rules in the manner it does today.” In this telling, a neutral umpire would be a better alternative to whatever the majority is doing. But surely the majority see themselves as being neutral umpires as well. Moreover, it is not correct that a neutral umpire cannot be self-aggrandizing. In fact, the idea that the Court can or ought to be a neutral umpire at all evidences an aggrandized vision of the judiciary. 

More broadly, though, Sotomayor’s observations of judicial aggrandizement include a prescient claim about a trend in the Roberts Court’s separation-of-powers decisions: “When it comes to the separation of powers, this Court tells the American public and its coordinate branches that it knows best.” Judicial aggrandizement is not unique or new to the Roberts Court. But the Roberts Court has brought it to new heights. As a whole, Sotomayor’s dissent demonstrates that at least some of the Justices are concerned about judicial aggrandizement and its consequences. Moreover, the Justices may be trying to avoid continued aggrandizement by recognizing the limits of judicial wisdom in its recent string of decisions rejecting tenuous theories of standing, including FDA v. Alliance for Hippocratic Medicine and Murthy v. Missouri. But doctrinal conclusions alone are no panacea. By themselves, no-standing conclusions do not dismantle an aggrandized judiciary. While Sotomayor’s dissent is a refreshing read, the trend towards increasing judicial aggrandizement continues.

Allen Sumrall is a Postdoctoral Scholar at the University of California, Irvine, School of Law, and a Ph.D. Candidate in Government at the University of Texas at Austin. He welcomes all comments via email.

Beau J. Baumann is a Ph.D. candidate at Yale Law School.

[i] For the existing literature on “judicial aggrandizement,” see, e.g., Josh Chafetz, Nixon/Trump: Strategies of Judicial Aggrandizement, 110 Geo. L.J. 125 (2021); Josh Chafetz, The New Judicial Power Grab, 67 St. Louis U. L.J. 625 (2023); Allen C. Sumrall & Beau J. Baumann, Clarifying Judicial Aggrandizement, 172 U. Penn. L. Rev. Online 24 (2023); Beau J. Baumann, Americana Administrative Law, 111 Geo. L.J. 465 (2023); Allen Sumrall, Nondelegation and Judicial Aggrandizement, 15 Elon L. Rev. 1 (2023).

[ii] See TransUnion, LLC v. Ramirez, 594 U.S. 413, 461 (2021) (Kagan, J., dissenting) (“The Court here transforms standing law from a doctrine of judicial modesty into a tool of judicial aggrandizement.”).

[iii] See Starbucks Corp. v. McKinney, 602 U.S. ___, slip op. at 16 (2024) (Jackson J., concurring in part) (“I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts[.]”).

[iv] See, e.g., Jamal Greene, How Rights Went Wrong: Why Our Obsession With Rights Is Tearing America Apart xxii (2021) (“But for [the Founders], the substantive rights that we today associate with the Supreme Court’s docket—freedom of speech, the right to bear arms, rights of equality, due process of law, and so forth—were best protected by legislatures and juries, not judges.”).

[v] One of the best pieces explicating an alternative view of the issues at stake is Blake Emerson’s forthcoming work, Vindicating Public Rights

[vi] “[T]here are three branches in the federal system, and there is no reason to think that one of them is free of institutional interests and agendas merely by virtue of the fact that its members wear robes. But it is nonsense with a purpose: institutions in the American constitutional order gain power over time as a function of their successful contention for public support.” Chafetz, supra note 1, at 128. See also id. at 150 (“But of course, the courts are not neutral arbiters of separation-of-powers conflicts; they are players in separation-of-powers conflicts. The judiciary, too, is a governing institution, with institutional goals and agendas.”).

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