On November 30, the Supreme Court heard two hours of oral argument in SEC v. Jarkesy. You can read a good summary of the arguments here. In a sentence, the issue is when the right to a trial by jury guaranteed by the Seventh Amendment extends to proceedings brought by an administrative agency that is part of the Executive branch of the federal government. No one can gainsay that the Executive can conduct some proceedings apart from the judiciary. After all, courts martial predate adoption of the Constitution and the Bill of Rights.
But the issue in Jarkesy is not a matter historicaly recognized as internal to the Excutive power. After all, the President is Commander-in-Chief. In this case, however, the SEC initiated an administrative proceeding against Mr. Jarkesy for violation of federal securities laws, which were enacted by the legislative branch. Can Congress grant by legislative action new and additional jurisdiction to the Executive to conduct adjudication?
Stay tuned. For now you can read two of my blog posts (here and here) from bygone days where I dicussed two SCOTUS decisions, the first decided in 2014 and the second in 2015. These opinions addressed the scope of the jurisdiction of the bankruptcy courts. More important than the particulars of those cases, however, is the brief reference in the second to the so-called "private rights doctrine." This doctrine harkens back to Supreme Court jurisprudence from the mid-nineteenth century and enjoyed a tortuous history.
I won't address the public rights doctrine here except to observe that Justice Thomas's dissent in the case of my second post may provide a roadmap for how several members of the Court will take up this opaque doctrine.
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