Sotomayor Blasts Majority For ‘Unleashing Chaos’ With New, 6-3 Anti-Agency Decision

WASHINGTON, DC - MARCH 12: U.S. Supreme Court Justices Sonia Sotomayor, and Amy Coney Barrett, not pictured, hold a conversation with moderator Eric Liu, Co-Founder and CEO of Citizen University, during a panel disc... WASHINGTON, DC - MARCH 12: U.S. Supreme Court Justices Sonia Sotomayor, and Amy Coney Barrett, not pictured, hold a conversation with moderator Eric Liu, Co-Founder and CEO of Citizen University, during a panel discussion at the Civic Learning Week National Forum at George Washington University on March 12, 2024, in Washington, DC. (Photo by Jahi Chikwendiu/The Washington Post via Getty Images) MORE LESS
Start your day with TPM.
Sign up for the Morning Memo newsletter

The Supreme Court on Thursday extended its record of anti-agency rulings, this time upending how the Securities and Exchange Commission (SEC) adjudicates some of its cases — a process blessed by Congress. 

This undermining of both agency and congressional power demonstrates a danger beyond curtailing how the SEC can go after fraudsters, Justice Sonia Sotomayor wrote in a dissent, joined by her two liberal colleagues.

“The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government,” she wrote. “Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.” 

Chief Justice John Roberts wrote for the majority. Justice Neil Gorsuch wrote in concurrence, joined by Justice Clarence Thomas.  

The conservatives telegraphed their intent to come down this way during November’s oral arguments, their hostility towards the government’s position all the more notable given that the SEC was established and its powers strengthened during periods of glaring malpractice by financial institutions.

“A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch,” Roberts wrote, echoing some good faith arguments against in-house adjudication (though in a way that advances the conservative majority’s typical anti-agency goals).

Still, the decision was more limited than some experts feared. The 5th Circuit Court of Appeals, for example, had found that Congress letting the SEC choose whether to adjudicate certain cases in federal courts or in-house violated the“nondelegation doctrine,” an idea spun up in the 1920s and seized upon in recent years by conservative scholars. The “doctrine,” which the conservative legal world has found very helpful to its war against the administrative state, holds that Congress can’t outsource any of its legislative authority to agencies. In a maximal reading, agencies would hardly be able to do anything without a new statute. In Thursday’s ruling, the Supreme Court did not reach that prong of the appeals court’s argument. 

Under the ruling, some targets of SEC enforcement could also choose to waive their right to a jury trial — which is long, expensive and potentially riskier than going before an in-house judge who understands the technicalities of the pertinent law. On the other hand, the SEC may opt to pursue fewer enforcement actions, similarly to skirt the cost and resource intensiveness of a jury trial.

Sotomayor, though, points to the uncertainty the decision unleashes, given that many other agencies operate like the SEC. And perhaps even more concerningly, some can only pursue civil penalties in-house. 

“The Occupational Safety and Health Review Commission, the Federal Energy Regulatory Commission, the Federal Mine Safety and Health Review Commission, the Department of Agriculture, and many others, can pursue civil penalties only in agency enforcement proceedings,” she wrote. “For those and countless other agencies, all the majority can say is tough luck; get a new statute from Congress.”

Ultimately, Sotomayor placed Thursday’s ruling in the greater tapestry of this Court’s chipping away at agency power — the long-running project of the legal right. 

“Today’s decision is a massive sea change,” she wrote. “Litigants seeking further dismantling of the ‘administrative state’ have reason to rejoice in their win today, but those of us who cherish the rule of law have nothing to celebrate.” 

Read the ruling here:

Latest News

Notable Replies

  1. But of course all those million dollar checks coming the Justices way is not corruption because is not a bribe is gratitude.

  2. Avatar for tpr tpr says:

    Mitch McConnell is the gravedigger of democracy, and John Roberts drives the hearse.

  3. This is so vile, it makes me ill:

    The Supreme Court on Thursday blocked a controversial proposed Purdue Pharma bankruptcy plan that would have provided billions of dollars to help address the nation’s opioid crisis in exchange for protecting the family that owns the company from future lawsuits.

    Justice Brown joined the majority; Kavanaugh did not. Interesting combination.

  4. So, with this case released, I have expectations that SCOTUS will throw the entire US regulatory environment into the trash bin with their upcoming Chevron case and find that Congress will have to write every single regulatory rule and not allow federal agencies to write the regs. Complete and utter insanity, but hey, it’s not your father’s SCOTUS!

  5. Wait until the good stuff comes out…it’s always last. Right now SCOTUS is managing perceptions. Next week will rock!

Continue the discussion at

31 more replies


Avatar for system1 Avatar for jcs Avatar for knut Avatar for richardinjax Avatar for mondfledermaus Avatar for romath Avatar for eldonlazar Avatar for DuckmanGR Avatar for inversion Avatar for dont Avatar for sparrowhawk Avatar for joelopines Avatar for gr Avatar for mrf Avatar for nobiru Avatar for wintermoon Avatar for brian512 Avatar for tpr Avatar for demosthenes59 Avatar for carolson Avatar for jackofalltirades Avatar for txlawyer Avatar for rascal_crone Avatar for Mingus

Continue Discussion
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: