Sotomayor warns Americans not to mistake 'judicial hubris' for the protection of rights as SCOTUS upends fraud finding against right-wing talk show host

Supreme Court Justice Sonia Sotomayor attends a panel discussion at the winter meeting of the National Governors Association, Friday, Feb. 23, 2024 in Washington. (AP Photo/Mark Schiefelbein)

Justice Sonia Sotomayor and the Supreme Court’s liberal wing had harsh words for the Court’s conservative majority Thursday over what Sotomayor characterized as a “power grab” that was a “seismic shift” away from precedent and a trampling of separation of powers.

Chief Justice John Roberts wrote for the Court’s six-member majority in SEC v. Jarkesy, a case about the securities fraud finding against a conservative talk show host that may have paved the way for a serious curtailing the power of executive branch agencies.

The case: A dispute over juries

George Jarkesy is a right-wing talk show host , Republican donor , and hedge fund promoter who was prosecuted for securities fraud by the federal Securities and Exchange Commission on three separate issues.

The prosecution was conducted via the SEC’s in-house proceedings in 2013. Jarkesy was found liable and ordered to pay penalties of $1 million.

On appeal, the ultraconservative U.S. Court of Appeals for the Fifth Circuit sided with Jarkesy on a number of issues, including his contention that the SEC was not authorized to hold nonjury proceedings that result in monetary penalties. Jarkesy argued that the Seventh Amendment’s mandate that “Suits at common law” with a controversy that “exceed[s] twenty dollars” require a trial by jury for cases like SEC prosecutions.

Jarkesy’s take on the jury issue conflicts directly with congressional expansion of administrative agency powers that permit the SEC and other agencies to seek penalties in administrative — that is, nonjury, non-court — proceedings. Despite concerns from some of the justices during oral arguments, the Supreme Court’s conservative majority sided with Jarkesy on Thursday, ruling that any defendant “facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator.”

The case was then remanded for further proceedings.

‘Judicial hubris’

In a 38-page dissent, Sotomayor railed against the majority for disregarding precedent, exceeding judicial authority, and rendering dozens of federal agencies impotent. Justices Elena Kagan and Ketanji Brown Jackson joined Sotomayor’s dissent.

The Court’s liberal wing said that while “the majority may think that it is protecting liberty” by requiring jury trials in administrative proceedings, no one should be taken with that “deeply misguided” belief.

“The American People should not mistake judicial hubris with the protection of individual rights,” wrote Sotomayor.

The dissent argued at length that the majority’s decision conflicted directly with a 1977 precedent — Atlas Roofing Co. v. Occupational Safety and Health Review Commission Court — and a line of cases that followed. The Atlas Roofing decision held that the Seventh Amendment does not require a jury trial to enforce civil violations of federal “public rights” statutes. The categorization “public rights” refers to a statute that must be enforced by a governmental entity as opposed to one that gives rise to private lawsuits between individuals.

Sotomayor wrote that the majority’s decision amounted to “wish[ing] away” the Atlas Roofing precedent and undermining stare decisis .

A ‘pernicious’ treading onto Congressional authority

Moreover, the dissent contended that Thursday’s ruling is a significant violation of the Court’s responsibility to stay in its own lane and respect the separation of powers.

She said that the majority’s overstepping not only treads on Congressional authority, but also “offends the Framers’ constitutional design so critical to the preservation of individual liberty: the division of our Government into three coordinate branches to avoid the concentration of power in the same hands.”

She even jabbed that “Judicial aggrandizement is as pernicious to the separation of powers as any aggrandizing action from either of the political branches,” before going on to chastise the majority for its failure to admit the seriousness of its actions.

“The majority pulls a rug out from under Congress without even acknowledging that its decision upends over two centuries of settled Government practice,” Sotomayor wrote.

The justice chastised the majority for admitting that its decision was a major departure from past precedent. Sotomayor said sarcastically that the legislative and executive branches “will be surprised to learn that the rule they thought long settled, and which remained unchallenged for half a century, is one that, according to the majority and the concurrence, my dissent just announced today.”

She went on to warn that the majority’s “mistaken view” puts hundreds of statutes and dozens of agencies at risk of being stripped of power, all by a court that “tried to disguise” the “earthshattering nature of its holding. ”

“Make no mistake: Today’s decision is a power grab,” the justice wrote in her characteristically blunt style.

Sotomayor went on to frame the Jarkesy ruling as one in a series of wrongheaded rulings by the conservative-majority court.

“Today’s ruling is part of a disconcerting trend: When it comes to the separation of powers, this Court tells the American public and its coordinate branches that it knows best,” she wrote.

You can read the Court’s full ruling here .

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