When Olympic athletes compete for gold, they expect a fair competition. They expect their opponents to play by the rules, and they expect their judges to judge fairly. Indeed, controversy has arisen when people see judges award higher points to athletes from their home countries.
While having fair judges is important to the integrity of a sporting event, it’s even more important when it comes to people’s rights and the judges who preside over them. This is what one of the most important Supreme Court decisions of this year involved.
For the past 14 years, the Securities Exchange Commission (SEC) has been able to prosecute people in front of its Administrative Law Judges (ALJs). ALJs preside over administrative proceedings, but they are employees of the same agency that is pursuing the action. ALJs decide both the law and facts in a case, and their decisions are reviewed by the SEC commissioners—all without a jury. This means an individual being prosecuted by the SEC could go through a prosecution and appeal, all without any outside check on the agency.
It makes sense why the SEC would do this. The SEC wins in 90% of its cases tried within the agency as opposed to 69% of cases in federal court. Even assuming that the ALJs are somehow immune to confirmation bias and pressure from their bosses, the numbers, at the very least, suggest corruption.
In SEC v. Jarkesy, the Court struck down the SEC’s enforcement of civil penalties for securities fraud without the protections of a jury trial accorded by the Seventh Amendment. Since the penalty resembles a suit that would be brought at common law, Congress cannot “conjure away the Seventh Amendment by mandating that traditional legal claims be brought there or taken to an administrative tribunal.”
The dissent (written by Justice Sonia Sotomayor) disagreed. Justice Sotomayor argued that it wasn’t the Constitution that mattered, but efficiency. As the dissent wrote, the SEC’s system can “yield important benefits over jury trials in federal court, such as greater efficiency and expertise, transparency and reasoned decisionmaking, as well as uniformity, predictability, and greater political accountability.” Because there are policy arguments that favor this scheme, the dissent argues that the Court has no role in ensuring that a right protected by the Constitution is preserved, just because Congress assigned it elsewhere.
But this ignores the Founder’s vision, set forth in the Constitution. Indeed, the Founders designed the federal government to be inefficient rather than efficient. As James Madison wrote, “Ambition must be made to counteract ambition.” Power cannot be consolidated in one branch. This need for inefficiency manifests itself in the separation of powers, appointments of the judiciary requiring the consent of the Senate, a declaration of war from Congress, and other checks that prevent power from being consolidated into one branch of the government.
The Founders also designed the judicial system to be inefficient. The judiciary had to be a separate branch from the executive because the self-interest of the prosecutor would corrupt the judgment and make it difficult to render a just outcome. As Montesquieu wrote: “Were [the judiciary] joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.” Our Founders wrote multiple checks on the judiciary into the Constitution to protect individuals, including rules of evidence, Miranda rights, and the Fourth and Fifth Amendments.
In particular, trial by jury was such an important right and check on the judiciary that it was one of the abuses of the king cited in the Declaration of Independence, and it was enshrined in the Sixth and Seventh Amendments. The Federalist Papers spent much ink on the topic of the jury, reassuring the public that the Supreme Court would not abrogate the role of the jury and that the Constitution did not remove the right to a jury.
The Supreme Court’s decision in Jarkesy is just the start of protecting these rights. Anti-fraud claims are just one enforcement mechanism the SEC has—not to mention the 12,000 agency adjudicators across the federal government. The Court could—and should—go further in dealing with the constitutional problems that abound in agency adjudication, including the unlawful appointment of administrative law judges, the lack of standardized rules of evidence, and the broad delegation of judicial authority to the executive.
No matter what people are accused of, they deserve—and are constitutionally guaranteed—a fair and impartial judgment.
While it may not be the most efficient system, all Americans should expect a gold standard when it comes to our judicial system.