Justice Sam Alito, compromise-maker?
So gun regulations that didn’t exist at the Founding were bad, but any modern statutory claim that could be shoehorned into a common law cause of action--replevin, anyone?--has to have a jury trial available?
Jarkesy is about more than administrative enforcement actions. One of the asks essentially is do away with “for cause” removal protections for ALJs. Ostensibly only SEC judges but an adverse decision will impact the entire federal administrative judiciary system. ALJs who provide due process hearings across the government would be impacted. It’s about politicizing a large and powerful faction of the administrative state who currently enjoy relative protection from political whims.
I’m not a lawyer but it sure seems to me that this case works to whittle away at congress’ power to write laws that hold corporations accountable to the people. This case and Chevron ruling works against the government to protect people and the environment from uncaring corporations. It is all about the money.
1) Scott McColloch's oral argument performance (as a first-timer at the tail end of a distinguished legal career) is instructive for younger lawyers tackling oral appellate arguments. After waiting through an hour of Brian Fletcher's arguments at the lectern, McColloch was cold. He took 5-10 minutes to warm up. (He also clearly had a cold, which didn't help.) Once warmed up, he was an excellent advocate for his side. A good lesson I thought in real-world appellate advocacy when the stakes are high and you start off stumbling with your words.
2) To me, Justice Alito sure seemed prepared to write an opinion (or concurrence) spelling out private vs public rights. His "finish this sentence for me" question was key, imho.
3) As a neutral observer, I was frustrated by the members completely ignoring the non-delegation and removal questions. They're important QPs yet they didn't warrant any oral argument time?
He has chutzpah.
It is curious that they granted cert for three things and so much focused on one.
As the former co-host of Strict Scrutiny Podcast who argued this week might tell you, stare decisis is for suckers. I suppose one of Kagan or Sotomayor's clerk gifted their boss a t-shirt by now.