(Slip Opinion) OCTOBER TERM, 2023 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

SECURITIES AND EXCHANGE COMMISSION v. 

JARKESY ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT 

No. 22–859. Argued November 29, 2023—Decided June 27, 2024 

In the aftermath of the Wall Street Crash of 1929, Congress passed a 

suite of laws designed to combat securities fraud and increase market 

transparency. Three such statues are relevant: The Securities Act of 

1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940. These Acts respectively govern the registration of securities, the trading of securities, and the activities of investment advisers. Although each regulates different aspects of the securities 

markets, their pertinent provisions—collectively referred to by regulators as “the antifraud provisions,” App. to Pet. for Cert. 73a, 202a—

target the same basic behavior: misrepresenting or concealing material facts. 

To enforce these Acts, Congress created the Securities and Exchange

Commission. The SEC may bring an enforcement action in one of two 

forums. It can file suit in federal court, or it can adjudicate the matter 

itself. The forum the SEC selects dictates certain aspects of the litigation. In federal court, a jury finds the facts, an Article III judge presides, and the Federal Rules of Evidence and the ordinary rules of discovery govern the litigation. But when the SEC adjudicates the matter

in-house, there are no juries. The Commission presides while its Division of Enforcement prosecutes the case. The Commission or its delegee—typically an Administrative Law Judge—also finds facts and decides discovery disputes, and the SEC’s Rules of Practice govern. 

One remedy for securities violations is civil penalties. Originally,

the SEC could only obtain civil penalties from unregistered investment

advisers in federal court. Then, in 2010, Congress passed the DoddFrank Wall Street Reform and Consumer Protection Act. The Act authorized the SEC to impose such penalties through its own in-house 
 

 

 

 

 

 

2 SEC v. JARKESY 

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proceedings.

Shortly after passage of the Dodd-Frank Act, the SEC initiated an 

enforcement action for civil penalties against investment adviser 

George Jarkesy, Jr., and his firm, Patriot28, LLC for alleged violations

of the “antifraud provisions” contained in the federal securities laws.

The SEC opted to adjudicate the matter in-house. As relevant, the 

final order determined that Jarkesy and Patriot28 had committed securities violations and levied a civil penalty of $300,000. Jarkesy and 

Patriot28 petitioned for judicial review. The Fifth Circuit vacated the 

order on the ground that adjudicating the matter in-house violated the 

defendants’ Seventh Amendment right to a jury trial. 

Held: When the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury

trial. Pp. 6–27. 

(a) The question presented by this case—whether the Seventh 

Amendment entitles a defendant to a jury trial when the SEC seeks 

civil penalties for securities fraud—is straightforward. Following the 

analysis set forth in Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 

and Tull v. United States, 481 U. S. 412, this action implicates the Seventh Amendment because the SEC’s antifraud provisions replicate 

common law fraud. And the “public rights” exception to Article III jurisdiction does not apply, because the present action does not fall 

within any of the distinctive areas involving governmental prerogatives where the Court has concluded that a matter may be resolved 

outside of an Article III court, without a jury. 

(b) The Court first explains why this action implicates the Seventh 

Amendment. 

(1) The right to trial by jury is “of such importance and occupies

so firm a place in our history and jurisprudence that any seeming curtailment of the right” has always been and “should be scrutinized with 

the utmost care.” Dimick v. Schiedt, 293 U. S. 474, 486. When the 

British attempted to evade American juries by siphoning adjudications 

to juryless admiralty, vice admiralty, and chancery courts, the Americans protested and eventually cited the British practice as a justification for declaring Independence. In the Revolution’s aftermath, concerns that the proposed Constitution lacked a provision guaranteeing 

a jury trial right in civil cases was perhaps the “most success[ful]” critique leveled against the document during the ratification debates.

The Federalist No. 83, p. 495. To fix that flaw, the Framers promptly

adopted the Seventh Amendment. Ever since, “every encroachment 

upon [the jury trial right] has been watched with great jealousy.” Parsons v. Bedford, 3 Pet. 433, 446. Pp. 7–8.

(2) The Seventh Amendment guarantees that in “[s]uits at common law . . . the right of trial by jury shall be preserved.” The right 
 

 

 

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itself is not limited to the “common-law forms of action recognized” 

when the Seventh Amendment was ratified. Curtis v. Loether, 415 

U. S. 189, 193. Rather, it “embrace[s] all suits which are not of equity

or admiralty jurisdiction, whatever may be the peculiar form which 

they may assume.” Parsons, 3 Pet., at 447. That includes statutory 

claims that are “legal in nature.” Granfinanciera, 492 U. S., at 53. 

To determine whether a suit is legal in nature, courts must consider

whether the cause of action resembles common law causes of action, 

and whether the remedy is the sort that was traditionally obtained in

a court of law. Of these factors, the remedy is the more important. 

And in this case, the remedy is all but dispositive. For respondents’

alleged fraud, the SEC seeks civil penalties, a form of monetary relief. 

Such relief is legal in nature when it is designed to punish or deter the

wrongdoer rather than solely to “restore the status quo.” Tull, 481 

U. S., at 422. The Acts condition the availability and size of the civil 

penalties available to the SEC based on considerations such as culpability, deterrence, and recidivism. See §§77h–1; 78u–2, 80b–3. These 

factors go beyond restoring the status quo and so are legal in nature. 

The SEC is also not obligated to use civil penalties to compensate victims. SEC civil penalties are thus “a type of remedy at common law 

that could only be enforced in courts of law.” Tull, 481 U. S., at 422. 

This suit implicates the Seventh Amendment right and a defendant

would be entitled to a jury on these claims. 

The close relationship between federal securities fraud and common

law fraud confirms that conclusion. Both target the same basic conduct: misrepresenting or concealing material facts. By using “fraud”

and other common law terms of art when it drafted the federal securities laws, Congress incorporated common law fraud prohibitions into 

those laws. This Court therefore often considers common law fraud 

principles when interpreting federal securities law. See, e.g., Dura 

Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 343–344. While federal securities fraud and common law fraud are not identical, the close 

relationship between the two confirms that this action is “legal in nature.” Granfinanciera, 492 U. S., at 53. Pp. 8–13.

(c) Because the claims at issue here implicate the Seventh Amendment, a jury trial is required unless the “public rights” exception applies. Under this exception, Congress may assign the matter for decision to an agency without a jury, consistent with the Seventh 

Amendment. For the reasons below, the exception does not apply. 

Pp. 13–27. 

(1) The Constitution prevents Congress from “withdraw[ing] from

judicial cognizance any matter which, from its nature, is the subject of

a suit at the common law.” Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284. Once such a suit “is brought within 
 

 

 

 

 

 

 

4 SEC v. JARKESY 

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the bounds of federal jurisdiction,” an Article III court must decide it, 

with a jury if the Seventh Amendment applies. Stern v. Marshall, 564 

U. S. 462, 484. On that basis, this Court has repeatedly explained that

matters concerning private rights may not be removed from Article III 

courts. See, e.g., Murray’s Lessee, 18 How., at 284. If a suit is in the 

nature of an action at common law, then the matter presumptively

concerns private rights, and adjudication by an Article III court is 

mandatory. Stern, 564 U. S., at 484. 

The Court also recognizes a class of cases concerning “public rights.” 

Such matters “historically could have been determined exclusively by

[the executive and legislative] branches.” Id., at 493 (internal quotation marks omitted). No involvement by an Article III court in the

initial adjudication of public rights claims is necessary. Certain categories that have been recognized as falling within the exception include matters concerning: the collection of revenue; aspects of customs 

law; immigration law; relations with Indian tribes; the administration

of public lands; and the granting of public benefits. The Court’s opinions governing this exception have not always spoken in precise terms.

But “even with respect to matters that arguably fall within the scope 

of the ‘public rights’ doctrine, the presumption is in favor of Article III 

courts.” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 

U. S. 50, 69, n. 23 (plurality opinion). Pp. 13–18.

(2) In Granfinanciera, this Court previously considered whether 

the Seventh Amendment guarantees the right to a jury trial “in the

face of Congress’ decision to allow a non-Article III tribunal to adjudicate” a statutory “fraud claim.” 492 U. S., at 37, 50. There the issue 

was whether Congress’s designation of fraudulent conveyance actions 

as “core [bankruptcy] proceedings” authorized non-Article III bankruptcy judges to hear them without juries. Id., at 50. The Court held 

that the designation was not permissible, even under the public rights 

exception. To determine whether the claim implicated the Seventh 

Amendment, the Court applied the principles distilled in Tull. Surveying English cases and considering the remedy these suits provided,

the Court concluded that fraudulent conveyance actions were “quintessentially suits at common law.” Granfinanciera, 492 U. S., at 56. 

Because these actions were akin to “suits at common law” and were 

not “closely intertwined” with the bankruptcy process, the Court held 

that the public rights exception did not apply, and a jury was required. 

Id., at 54, 56. Pp. 19–20. 

(3) Granfinanciera effectively decides this case. The action here 

was brought under the “anti-fraud provisions” of the federal securities 

laws and provide civil penalties that can “only be enforced in courts of 

law.” Tull, 481 U. S., at 422. They target the same basic conduct as 
 

 

 

 

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common law fraud, employ the same terms of art, and operate pursuant to similar legal principles. In short, this action involves a “matter[ ] of private rather than public right.” Granfinanciera, 492 U. S., 

at 56. Pp. 20–21.

(4) The SEC claims that the public rights exception applies because Congress created “new statutory obligations, impose[d] civil penalties for their violation, and then commit[ted] to an administrative

agency the function of deciding whether a violation ha[d] in fact occurred.” Brief for Petitioner 21. Granfinanciera does away with much 

of the SEC’s argument. Congress cannot “conjure away the Seventh

Amendment by mandating that traditional legal claims be . . . taken 

to an administrative tribunal.” 492 U. S., at 52. The SEC’s argument 

that Granfinanciera does not apply because the Government is the 

party bringing this action also fails. What matters is the substance of 

the suit, not where it is brought, who brings it, or how it is labeled. 

Northern Pipeline Constr. Co., 458 U. S., at 69 n. 23 (plurality opinion). 

Pp. 21–22. 

(5) The Court’s opinion in Atlas Roofing Co. v. Occupational Safety 

and Health Review Comm’n, 430 U. S. 442, is not to the contrary. The 

litigation in that case arose under the Occupational Health and Safety

Act. Facing agency enforcement actions, two employers alleged that 

the agency’s adjudicatory authority violated the Seventh Amendment.

See id., at 448–449. The Court concluded that Congress could assign

the OSH Act adjudications to an agency because the claims involved

“a new cause of action, and remedies therefor, unknown to the common 

law.” Id., at 461. The cases Atlas Roofing relied upon applied the 

“public rights” exception to actions that were “‘not . . . suit[s] at common law or in the nature of such . . . suit[s].’” Id., at 453. Atlas Roofing

therefore does not apply here, where the statutory claim is “ ‘in the

nature of ’ ” a common law suit. Id., at 453. Later rulings also foreclose 

reading Atlas Roofing as the SEC does. This Court clarified in Tull 

that the Seventh Amendment does apply to novel statutory regimes, 

so long as the statutory claims are akin to common law claims. See 

481 U. S., at 421–423. And the Court has explained that the public

rights exception does not apply automatically whenever Congress assigns a matter to an agency for adjudication. See Granfinanciera, 492 

U. S., at 52. Pp. 22–27. 

The Court does not reach the remaining issues in this case. 

34 F. 4th 446, affirmed and remanded. 

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, 

ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J., 

filed a concurring opinion, in which THOMAS, J., joined. SOTOMAYOR, J., 

filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined. 
 

_________________ 

_________________ 

Cite as: 603 U. S. ____ (2024) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

United States Reports. Readers are requested to notify the Reporter of 

Decisions, Supreme Court of the United States, Washington, D. C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 

SUPREME COURT OF THE UNITED STATES 

No. 22–859 

SECURITIES AND EXCHANGE COMMISSION, 

PETITIONER v. GEORGE R. JARKESY, JR., 

ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[June 27, 2024] 

CHIEF JUSTICE ROBERTS delivered the opinion of the 

Court. 

In 2013, the Securities and Exchange Commission initiated an enforcement action against respondents George 

Jarkesy, Jr., and Patriot28, LLC, seeking civil penalties for 

alleged securities fraud. The SEC chose to adjudicate the 

matter in-house before one of its administrative law judges, 

rather than in federal court where respondents could have 

proceeded before a jury. We consider whether the Seventh 

Amendment permits the SEC to compel respondents to defend themselves before the agency rather than before a jury 

in federal court. 

I 

A 

In the aftermath of the Wall Street Crash of 1929, Congress passed a suite of laws designed to combat securities

fraud and increase market transparency. Three such statues are relevant here: The Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers 

Act of 1940. 48 Stat. 74, 15 U. S. C. §§77a et seq.; 48 Stat. 
 

2 SEC v. JARKESY 

Opinion of the Court 

881, 78a et seq.; 54 Stat. 847, 80b–1 et seq. These Acts respectively govern the registration of securities, the trading 

of securities, and the activities of investment advisers. 

Their protections are mutually reinforcing and often overlap. See Lorenzo v. SEC, 587 U. S. 71, 80 (2019). Although

each regulates different aspects of the securities markets, 

their pertinent provisions—collectively referred to by regulators as “the antifraud provisions,” App. to Pet. for Cert.

73a, 202a—target the same basic behavior: misrepresenting or concealing material facts.

The three antifraud provisions are Section 17(a) of the 

Securities Act, Section 10(b) of the Securities Exchange Act,

and Section 206 of the Investment Advisers Act. Section 

17(a) prohibits regulated individuals from “obtain[ing]

money or property by means of any untrue statement of a

material fact,” as well as causing certain omissions of material fact. 15 U. S. C. §77q(a)(2). As implemented by Rule

10b–5, Section 10(b) prohibits using “any device, scheme, or

artifice to defraud,” making “untrue statement[s] of . . . material fact,” causing certain material omissions, and “engag[ing] in any act . . . which operates or would operate as

a fraud.” 17 CFR §240.10b–5 (2023); see 15 U. S. C. §78j(b). 

And finally, Section 206(b), as implemented by Rule 206(4)–

8, prohibits investment advisers from making “any untrue

statement of a material fact” or engaging in “fraudulent, deceptive, or manipulative” acts with respect to investors or

prospective investors. 17 CFR §§275.206(4)–8(a)(1), (2); see 

15 U. S. C. §80b–6(4).

To enforce these Acts, Congress created the SEC. The 

SEC may bring an enforcement action in one of two forums. 

First, the Commission can adjudicate the matter itself. See 

§§77h–1, 78u–2, 78u–3, 80b–3. Alternatively, it can file a

suit in federal court. See §§77t, 78u, 80b–9. The SEC’s 

choice of forum dictates two aspects of the litigation: The 

procedural protections enjoyed by the defendant, and the

remedies available to the SEC. 
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Opinion of the Court 

Procedurally, these forums differ in who presides and 

makes legal determinations, what evidentiary and discovery rules apply, and who finds facts. Most pertinently, in

federal court a jury finds the facts, depending on the nature

of the claim. See U. S. Const., Amdt. 7. In addition, a lifetenured, salary-protected Article III judge presides, see

Art. III, §1, and the litigation is governed by the Federal 

Rules of Evidence and the ordinary rules of discovery. 

Conversely, when the SEC adjudicates the matter inhouse, there are no juries. Instead, the Commission presides and finds facts while its Division of Enforcement prosecutes the case. The Commission may also delegate its role 

as judge and factfinder to one of its members or to an administrative law judge (ALJ) that it employs. See 15 

U. S. C. §78d–1. In these proceedings, the Commission or

its delegee decides discovery disputes, see, e.g., 17 CFR 

§201.232(b), and the SEC’s Rules of Practice govern, see 17

CFR §201.100 et seq. The Commission or its delegee also

determines the scope and form of permissible evidence and 

may admit hearsay and other testimony that would be inadmissible in federal court. See §§201.320, 201.326. 

When a Commission member or an ALJ presides, the full 

Commission can review that official’s findings and conclusions, but it is not obligated to do so. See §201.360; 15 

U. S. C. §78d–1. Judicial review is also available once the 

proceedings have concluded. See §§77i(a), 78y(a)(1), 80b– 

13(a). But such review is deferential. By law, a reviewing 

court must treat the agency’s factual findings as “conclusive” if sufficiently supported by the record, e.g., §78y(a)(4); 

see Richardson v. Perales, 402 U. S. 389, 401 (1971), even 

when they rest on evidence that could not have been admitted in federal court. 

The remedy at issue in this case, civil penalties, also originally depended upon the forum chosen by the SEC. Except 

in cases against registered entities, the SEC could obtain 

civil penalties only in federal court. See Insider Trading 
 

 

4 SEC v. JARKESY 

Opinion of the Court 

Sanctions Act of 1984, §2, 98 Stat. 1264; Securities Enforcement Remedies and Penny Stock Reform Act of 1990, §§101, 

201–202, 104 Stat. 932–933, 935–938. That is no longer so. 

In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), 124 

Stat. 1376. That Act “ma[de] the SEC’s authority in administrative penalty proceedings coextensive with its authority

to seek penalties in Federal court.” H. R. Rep. No. 111–687, 

p. 78 (2010). In other words, the SEC may now seek civil

penalties in federal court, or it may impose them through

its own in-house proceedings. See Dodd-Frank Act, 

§929P(a), 124 Stat. 1862–1864 (codified in relevant part as 

amended at 15 U. S. C. §§77h–1(g), 78u–2(a), 80b–3(i)(1)). 

Civil penalties rank among the SEC’s most potent enforcement tools. These penalties consist of fines of up to 

$725,000 per violation. See §§77h–1(g), 78u–2, 80b–3(i).

And the SEC may levy these penalties even when no investor has actually suffered financial loss. See SEC v. Blavin, 

760 F. 2d 706, 711 (CA6 1985) (per curiam). 

B 

Shortly after passage of the Dodd-Frank Act, the SEC began investigating Jarkesy and Patriot28 for securities 

fraud. Between 2007 and 2010, Jarkesy launched two investment funds, raising about $24 million from 120 “accredited” investors—a class of investors that includes, for example, financial institutions, certain investment professionals, 

and high net worth individuals. App. to Pet. for Cert. 72a–

73a, 110a, n. 72; see 17 CFR §230.501. Patriot28, which 

Jarkesy managed, served as the funds’ investment adviser. 

According to the SEC, Jarkesy and Patriot28 misled investors in at least three ways: (1) by misrepresenting the investment strategies that Jarkesy and Patriot28 employed, 

(2) by lying about the identity of the funds’ auditor and 

prime broker, and (3) by inflating the funds’ claimed value 
 

 

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Opinion of the Court 

so that Jarkesy and Patriot28 could collect larger management fees. App. to Pet. for Cert. 80a–86a, 95a–105a. The 

SEC initiated an enforcement action, contending that these

actions violated the antifraud provisions of the Securities 

Act, the Securities Exchange Act, and the Investment Advisers Act, and sought civil penalties and other remedies.

Relying on the new authority conferred by the DoddFrank Act, the SEC opted to adjudicate the matter itself

rather than in federal court. In 2014, the presiding ALJ 

issued an initial decision. Id., at 155a–225a. The SEC reviewed the decision and then released its final order in 

2020. Id., at 71a–154a. The final order levied a civil penalty of $300,000 against Jarkesy and Patriot28, directed 

them to cease and desist committing or causing violations

of the antifraud provisions, ordered Patriot28 to disgorge

earnings, and prohibited Jarkesy from participating in the 

securities industry and in offerings of penny stocks. Id., at 

152a–154a. 

Jarkesy and Patriot28 petitioned for judicial review. 34 

F. 4th 446, 450 (CA5 2022). A divided panel of the Fifth

Circuit granted their petition and vacated the final order. 

Id., at 449–450. Applying a two-part test from Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 (1989), the panel held

that the agency’s decision to adjudicate the matter in-house

violated Jarkesy’s and Patriot28’s Seventh Amendment 

right to a jury trial. 34 F. 4th, at 451. First, the panel determined that because these SEC antifraud claims were 

“akin to [a] traditional action[] in debt,” a jury trial would 

be required if this case were brought in an Article III court. 

Id., at 454; see id., at 453–455. It then considered whether 

the “public rights” exception applied. That exception permits Congress, under certain circumstances, to assign an

action to an agency tribunal without a jury, consistent with

the Seventh Amendment. See id., at 455–459. The panel 

concluded that the exception did not apply, and that therefore the case should have been brought in federal court, 
 

6 SEC v. JARKESY 

Opinion of the Court 

where a jury could have found the facts pertinent to the defendants’ fraud liability. Based on this Seventh Amendment violation, the panel vacated the final order. Id., at 

459. 

It also identified two further constitutional problems. 

First, it determined that Congress had violated the nondelegation doctrine by authorizing the SEC, without adequate guidance, to choose whether to litigate this action in

an Article III court or to adjudicate the matter itself. See 

id., at 459–463. The panel also found that the insulation of 

the SEC ALJs from executive supervision with two layers 

of for-cause removal protections violated the separation of 

powers. See id., at 463–466. Judge Davis dissented. Id., 

at 466–479. The Fifth Circuit denied rehearing en banc, 51

F. 4th 644 (2022), and we granted certiorari, 600 U. S. ___ 

(2023). 

II 

This case poses a straightforward question: whether the

Seventh Amendment entitles a defendant to a jury trial

when the SEC seeks civil penalties against him for securities fraud. Our analysis of this question follows the approach set forth in Granfinanciera and Tull v. United 

States, 481 U. S. 412 (1987). The threshold issue is whether 

this action implicates the Seventh Amendment. It does. 

The SEC’s antifraud provisions replicate common law 

fraud, and it is well established that common law claims 

must be heard by a jury.

Since this case does implicate the Seventh Amendment, 

we next consider whether the “public rights” exception to 

Article III jurisdiction applies. This exception has been

held to permit Congress to assign certain matters to agencies for adjudication even though such proceedings would 

not afford the right to a jury trial. The exception does not 

apply here because the present action does not fall within 
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Opinion of the Court 

any of the distinctive areas involving governmental prerogatives where the Court has concluded that a matter may be

resolved outside of an Article III court, without a jury. The 

Seventh Amendment therefore applies and a jury is required. Since the answer to the jury trial question resolves 

this case, we do not reach the nondelegation or removal issues. 

A 

We first explain why this action implicates the Seventh

Amendment. 

1 

The right to trial by jury is “of such importance and occupies so firm a place in our history and jurisprudence that

any seeming curtailment of the right” has always been and

“should be scrutinized with the utmost care.” Dimick v. 

Schiedt, 293 U. S. 474, 486 (1935). Commentators recognized the right as “the glory of the English law,” 3 W. Blackstone, Commentaries on the Laws of England 379 (8th ed.

1778) (Blackstone), and it was prized by the American colonists. When the English began evading American juries by

siphoning adjudications to juryless admiralty, vice admiralty, and chancery courts, Americans condemned Parliament for “subvert[ing] the rights and liberties of the colonists.” Resolutions of the Stamp Act Congress, Art. VIII

(Oct. 19, 1765), reprinted in Sources of Our Liberties 270,

271 (R. Perry & J. Cooper eds. 1959). Representatives gathered at the First Continental Congress demanded that Parliament respect the “great and inestimable privilege of being tried by their peers of the vicinage, according to the 

[common] law.” 1 Journals of the Continental Congress, 

1774–1789, p. 69 (Oct. 14, 1774) (W. Ford ed. 1904). And 

when the English continued to try Americans without juries, the Founders cited the practice as a justification for 
 

8 SEC v. JARKESY 

Opinion of the Court 

severing our ties to England. See Declaration of Independence ¶20; see generally Erlinger v. United States, 602 U. S. 

___, ___–___ (2024).

In the Revolution’s aftermath, perhaps the “most success[ful]” critique leveled against the proposed Constitution 

was its “want of a . . . provision for the trial by jury in civil 

cases.” The Federalist No. 83, p. 495 (C. Rossiter ed. 1961) 

(A. Hamilton) (emphasis deleted). The Framers promptly

adopted the Seventh Amendment to fix that flaw. In so doing, they “embedded” the right in the Constitution, securing

it “against the passing demands of expediency or convenience.” Reid v. Covert, 354 U. S. 1, 10 (1957) (plurality opinion). Since then, “every encroachment upon it has been 

watched with great jealousy.” Parsons v. Bedford, 3 Pet. 

433, 446 (1830). 

2 

By its text, the Seventh Amendment guarantees that in 

“[s]uits at common law, . . . the right of trial by jury shall be 

preserved.” In construing this language, we have noted 

that the right is not limited to the “common-law forms of

action recognized” when the Seventh Amendment was ratified. Curtis v. Loether, 415 U. S. 189, 193 (1974). As Justice Story explained, the Framers used the term “common

law” in the Amendment “in contradistinction to equity, and

admiralty, and maritime jurisprudence.” Parsons, 3 Pet., 

at 446. The Amendment therefore “embrace[s] all suits

which are not of equity or admiralty jurisdiction, whatever 

may be the peculiar form which they may assume.” Id., at 

447. 

The Seventh Amendment extends to a particular statutory claim if the claim is “legal in nature.” Granfinanciera, 

492 U. S., at 53. As we made clear in Tull, whether that 

claim is statutory is immaterial to this analysis. See 481 

U. S., at 414–415, 417–425. In that case, the Government 

sued a real estate developer for civil penalties in federal 
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Opinion of the Court 

court. The developer responded by invoking his right to a 

jury trial. Although the cause of action arose under the

Clean Water Act, the Court surveyed early cases to show 

that the statutory nature of the claim was not legally relevant. “Actions by the Government to recover civil penalties

under statutory provisions,” we explained, “historically 

ha[d] been viewed as [a] type of action in debt requiring 

trial by jury.” Id., at 418–419. To determine whether a suit 

is legal in nature, we directed courts to consider the cause 

of action and the remedy it provides. Since some causes of 

action sound in both law and equity, we concluded that the 

remedy was the “more important” consideration. Id., at 421 

(brackets and internal quotation marks omitted); see id., at 

418–421. 

In this case, the remedy is all but dispositive. For respondents’ alleged fraud, the SEC seeks civil penalties, a 

form of monetary relief. While monetary relief can be legal 

or equitable, money damages are the prototypical common

law remedy. See Mertens v. Hewitt Associates, 508 U. S. 

248, 255 (1993). What determines whether a monetary 

remedy is legal is if it is designed to punish or deter the 

wrongdoer, or, on the other hand, solely to “restore the status quo.” Tull, 481 U. S., at 422. As we have previously 

explained, “a civil sanction that cannot fairly be said solely 

to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment.” Austin v. United States, 509 U. S. 

602, 610 (1993) (internal quotation marks omitted). And 

while courts of equity could order a defendant to return unjustly obtained funds, only courts of law issued monetary 

penalties to “punish culpable individuals.” Tull, 481 U. S., 

at 422. Applying these principles, we have recognized that 

“civil penalt[ies are] a type of remedy at common law that

could only be enforced in courts of law.” Ibid. The same is 

true here. 

To start, the Securities Exchange Act and the Investment 
 

10 SEC v. JARKESY 

Opinion of the Court 

Advisers Act condition the availability of civil penalties on 

six statutory factors: (1) whether the alleged misconduct involved fraud, deceit, manipulation, or deliberate or reckless 

disregard for regulatory requirements, (2) whether it 

caused harm, (3) whether it resulted in unjust enrichment,

accounting for any restitution made, (4) whether the defendant had previously violated securities laws or regulations, or had previously committed certain crimes, (5) the

need for deterrence, and (6) other “matters as justice may

require.” §§78u–2(c), 80b–3(i)(3). Of these, several concern 

culpability, deterrence, and recidivism. Because they tie

the availability of civil penalties to the perceived need to

punish the defendant rather than to restore the victim, 

such considerations are legal rather than equitable.

The same is true of the criteria that determine the size of 

the available remedy. The Securities Act, the Securities 

Exchange Act, and the Investment Advisers Act establish

three “tiers” of civil penalties. See §§77h–1(g)(2), 78u–2(b), 

80b–3(i)(2). Violating a federal securities law or regulation

exposes a defendant to a first tier penalty. A second tier 

penalty may be ordered if the violation involved fraud, deceit, manipulation, or deliberate or reckless disregard for 

regulatory requirements. Finally, if those acts also resulted 

in substantial gains to the defendant or losses to another,

or created a “significant risk” of the latter, the defendant is 

subject to a third tier penalty. Each successive tier authorizes a larger monetary sanction. See ibid. 

Like the considerations that determine the availability of

civil penalties in the first place, the criteria that divide 

these tiers are also legal in nature. Each tier conditions the 

available penalty on the culpability of the defendant and 

the need for deterrence, not the size of the harm that must 

be remedied. Indeed, showing that a victim suffered harm

is not even required to advance a defendant from one tier to 

the next. Since nothing in this analysis turns on “restor[ing] the status quo,” Tull, 481 U. S., at 422, these factors 
 

Cite as: 603 U. S. ____ (2024) 11 

Opinion of the Court 

show that these civil penalties are designed to be punitive. 

The final proof that this remedy is punitive is that the 

SEC is not obligated to return any money to victims. See 

id., at 422–423. Although the SEC can choose to compensate injured shareholders from the civil penalties it collects, 

see 15 U. S. C. §7246(a), it admits that it is not required to 

do so, see App. to Pet. for Cert. 124a, n. 116 (citing 17 CFR 

§201.1100). Such a penalty by definition does not “restore

the status quo” and can make no pretense of being equitable. Tull, 481 U. S., at 422. 

In sum, the civil penalties in this case are designed to 

punish and deter, not to compensate. They are therefore “a

type of remedy at common law that could only be enforced 

in courts of law.” Ibid. That conclusion effectively decides

that this suit implicates the Seventh Amendment right, and

that a defendant would be entitled to a jury on these claims. 

See id., at 421–423. 

The close relationship between the causes of action in this 

case and common law fraud confirms that conclusion. Both 

target the same basic conduct: misrepresenting or concealing material facts. Compare 15 U. S. C. §§77q(a)(2), 78j(b),

80b–6(4); 17 CFR §§240.10b–5(b), 275.206(4)–8(a)(1), with

Restatement (Third) of Torts: Liability for Economic Harm, 

§§9, 13 (2018); see also, e.g., Pauwels v. Deloitte LLP, 83 

F. 4th 171, 189–190 (CA2 2023) (identifying the elements of 

common law fraud under New York law); Conroy v. Regents 

of Univ. of Cal., 45 Cal. 4th 1244, 1254–1255, 203 P. 3d 

1127, 1135 (2009) (same for California law); Wesdem, L.L.C. 

v. Illinois Tool Works, Inc., 70 F. 4th 285, 291 (CA5 2023) 

(same for Texas law). That is no accident. Congress deliberately used “fraud” and other common law terms of art in 

the Securities Act, the Securities Exchange Act, and the Investment Advisers Act. E.g., 15 U. S. C. §77q(a)(3) (prohibiting any practice “which operates . . . as a fraud”). In so 

doing, Congress incorporated prohibitions from common 

law fraud into federal securities law. The SEC has followed 
 

12 SEC v. JARKESY 

Opinion of the Court 

suit in rulemakings. Rule 10b–5, for example, prohibits

“any device, scheme, or artifice to defraud,” and “engag[ing] 

in any act . . . which operates or would operate as a fraud.” 

17 CFR §§240.10b–5(a), (c).

Congress’s decision to draw upon common law fraud created an enduring link between federal securities fraud and 

its common law “ancestor.” Foster v. Wilson, 504 F. 3d 

1046, 1050 (CA9 2007). “[W]hen Congress transplants a

common-law term, the old soil comes with it.” United States 

v. Hansen, 599 U. S. 762, 778 (2023) (internal quotation

marks omitted). Our precedents therefore often consider 

common law fraud principles when interpreting federal securities law. E.g., Dura Pharmaceuticals, Inc. v. Broudo, 

544 U. S. 336, 343–344 (2005) (evaluating pleading requirements in light of the “common-law roots of the securities

fraud action”); Schreiber v. Burlington Northern, Inc., 472 

U. S. 1, 7 (1985) (“The meaning the Court has given the

term ‘manipulative’ [in §10b of the Securities Exchange 

Act] is consistent with the use of the term at common law 

. . . .” (footnote omitted)); Chiarella v. United States, 445 

U. S. 222, 227–229 (1980) (explaining that insider trading

liability under Rule 10b–5 is rooted in the common law duty 

of disclosure); Basic Inc. v. Levinson, 485 U. S. 224, 253 

(1988) (White, J., concurring in part and dissenting in part) 

(“In general, the case law developed in this Court with respect to §10(b) and Rule 10b–5 has been based on doctrines

with which we, as judges, are familiar: common-law doctrines of fraud and deceit.”).

That is not to say that federal securities fraud and common law fraud are identical. In some respects, federal securities fraud is narrower. For example, federal securities 

law does not “convert every common-law fraud that happens to involve securities into a violation.” SEC v. 

Zandford, 535 U. S. 813, 820 (2002). It only targets certain

subject matter and certain disclosures. In other respects, 
Cite as: 603 U. S. ____ (2024) 13 

Opinion of the Court 

federal securities fraud is broader. For example, federal securities fraud employs the burden of proof typical in civil

cases, while its common law analogue traditionally used a 

more stringent standard. See Herman & MacLean v. Huddleston, 459 U. S. 375, 387–390 (1983). Courts have also 

not typically interpreted federal securities fraud to require 

a showing of harm to be actionable by the SEC. See, e.g., 

Blavin, 760 F. 2d, at 711; SEC v. Life Partners Holdings, 

Inc., 854 F. 3d 765, 779 (CA5 2017). Nevertheless, the close 

relationship between federal securities fraud and common 

law fraud confirms that this action is “legal in nature.” 

Granfinanciera, 492 U. S., at 53. 

B 

1 

Although the claims at issue here implicate the Seventh 

Amendment, the Government and the dissent argue that a

jury trial is not required because the “public rights” exception applies. Under this exception, Congress may assign 

the matter for decision to an agency without a jury, consistent with the Seventh Amendment. But this case does 

not fall within the exception, so Congress may not avoid a 

jury trial by preventing the case from being heard before an

Article III tribunal. 

The Constitution prohibits Congress from “withdraw[ing]

from judicial cognizance any matter which, from its nature, 

is the subject of a suit at the common law.” Murray’s Lessee 

v. Hoboken Land & Improvement Co., 18 How. 272, 284 

(1856). Once such a suit “is brought within the bounds of 

federal jurisdiction,” an Article III court must decide it, 

with a jury if the Seventh Amendment applies. Stern v. 

Marshall, 564 U. S. 462, 484 (2011). These propositions are

critical to maintaining the proper role of the Judiciary in

the Constitution: “Under ‘the basic concept of separation of 

powers . . . that flow[s] from the scheme of a tripartite government’ adopted in the Constitution, ‘the judicial Power of 
 

14 SEC v. JARKESY 

Opinion of the Court 

the United States’” cannot be shared with the other 

branches. Id., at 483 (quoting United States v. Nixon, 418 

U. S. 683, 704 (1974); alteration in original). Or, as Alexander Hamilton wrote in The Federalist Papers, “‘there is

no liberty if the power of judging be not separated from the 

legislative and executive powers.’” The Federalist No. 78, 

at 466 (quoting 1 Montesquieu, The Spirit of Laws 181 

(10th ed. 1773)).

On that basis, we have repeatedly explained that matters

concerning private rights may not be removed from Article 

III courts. Murray’s Lessee, 18 How., at 284; Granfinanciera, 492 U. S., at 51–52; Stern, 564 U. S., at 484. A hallmark that we have looked to in determining if a suit concerns private rights is whether it “is made of ‘the stuff of

the traditional actions at common law tried by the courts at

Westminster in 1789.’” Id., at 484 (quoting Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 90 

(1982) (Rehnquist, J., concurring in judgment)). If a suit is 

in the nature of an action at common law, then the matter 

presumptively concerns private rights, and adjudication by 

an Article III court is mandatory. Stern, 564 U. S., at 484. 

At the same time, our precedent has also recognized a 

class of cases concerning what we have called “public 

rights.” Such matters “historically could have been determined exclusively by [the executive and legislative] 

branches,” id., at 493 (internal quotation marks omitted), 

even when they were “presented in such form that the judicial power [wa]s capable of acting on them,” Murray’s Lessee, 18 How., at 284. In contrast to common law claims, no 

involvement by an Article III court in the initial adjudication is necessary in such a case.

The decision that first recognized the public rights exception was Murray’s Lessee. In that case, a federal customs 

collector failed to deliver public funds to the Treasury, so

the Government issued a “warrant of distress” to compel 

him to produce the withheld sum. 18 How., at 274–275. 
Cite as: 603 U. S. ____ (2024) 15 

Opinion of the Court 

Pursuant to the warrant, the Government eventually seized 

and sold a plot of the collector’s land. Id., at 274. Plaintiffs 

later attacked the purchaser’s title, arguing that the initial

seizure was void because the Government had audited the 

collector’s account and issued the warrant itself without judicial involvement. Id., at 275. 

The Court upheld the sale. It explained that pursuant to

its power to collect revenue, the Government could rely on 

“summary proceedings” to compel its officers to “pay such

balances of the public money” into the Treasury “as may be 

in their hands.” Id., at 281, 285. Indeed, the Court observed, there was an unbroken tradition—long predating 

the founding—of using these kinds of proceedings to “enforce payment of balances due from receivers of the revenue.” Id., at 278; see id., at 281. In light of this historical

practice, the Government could issue a valid warrant without intruding on the domain of the Judiciary. See id., at 

280–282. The challenge to the sale thus lacked merit. 

This principle extends beyond cases involving the collection of revenue. In Oceanic Steam Navigation Co. v. 

Stranahan, 214 U. S. 320 (1909), we considered the imposition of a monetary penalty on a steamship company. Pursuant to its plenary power over immigration, Congress had 

excluded immigration by aliens afflicted with “loathsome or

dangerous contagious diseases,” and it authorized customs 

collectors to enforce the prohibition with fines. Id., at 331– 

334. When a steamship company challenged the penalty 

under Article III, we upheld it. Congress’s power over foreign commerce, we explained, was so total that no party had 

a “‘vested right’” to import anything into the country. Id., 

at 335 (quoting Buttfield v. Stranahan, 192 U. S. 470, 493 

(1904)). By the same token, Congress could also prohibit 

immigration by certain classes of persons and enforce those 

prohibitions with administrative penalties assessed without a jury. See Oceanic Steam Navigation Co., 214 U. S., at 
 

16 SEC v. JARKESY 

Opinion of the Court 

339–340.1

 In Ex parte Bakelite Corp., we upheld a law authorizing 

the President to impose tariffs on goods imported by “unfair 

methods of competition.” 279 U. S. 438, 446 (1929). The 

law permitted him to set whatever tariff was necessary,

subject to a statutory cap, to produce fair competition. If 

the President was “satisfied the unfairness [was] extreme,”

the law even authorized him to “exclude[]” foreign goods entirely. Ibid. Because the political branches had traditionally held exclusive power over this field and had exercised 

—————— 1The dissent asserts that Oceanic Steam Navigation stands for the 

proposition that the public rights exception applies to any exercise of

power granted to Congress. Post, at 10–11 (opinion of SOTOMAYOR, J). It 

must be reading from a different case than we are. Oceanic Steam Navigation expressly confines its analysis to the exercise of Congress’s power 

over foreign commerce. 214 U. S., at 339 (“It is insisted that the decisions

just stated and the legislative practices referred to are inapposite here, 

because they all relate to subjects peculiarly within the authority of the

legislative department of the Government, and which, from the necessity

of things, required the concession that administrative officers should 

have the authority to enforce designated penalties without resort to the 

courts. But over no conceivable subject is the legislative power of Congress more complete than it is over that with which the act we are now 

considering deals.); id., at 334 (explaining that the statute “rest[s] . . . 

upon the authority of Congress over foreign commerce and its right to 

control the coming of aliens into the United States” (emphasis added)); 

id., at 340 (citing “the authority of Congress over the right to bring aliens

into the United States”); see id., at 339 (discussing congressional power

over “the valuation of imported merchandise,” “ ‘importers,’ ” and “tariff[s]” (quoting Bartlett v. Kane, 16 How. 263, 274 (1854)); 214 U. S., at 

334 (expressly acknowledging and avoiding comment on “ ‘limitations’ ” 

of Congress’s “ ‘interstate commerce’ ” power because this case concerns 

instead Congress’s exercise of its “ ‘plenary power in respect to the exclusion of merchandise brought from foreign countries’ ” (quoting Buttfield 

v. Stranahan, 192 U. S. 470, 492 (1904); emphasis added). Nowhere does 

Oceanic Steam Navigation say that the public rights exception applies to

cases concerning the securities markets or interstate commerce more 

broadly. The rules the dissent purports to locate in Oceanic Steam Navigation are therefore wholly inapposite. 
 

Cite as: 603 U. S. ____ (2024) 17 

Opinion of the Court 

it, we explained that the assessment of tariffs did not implicate Article III. Id., at 458, 460–461. 

This Court has since held that certain other historic categories of adjudications fall within the exception, including 

relations with Indian tribes, see United States v. Jicarilla 

Apache Nation, 564 U. S. 162, 174 (2011), the administration of public lands, Crowell v. Benson, 285 U. S. 22, 51 

(1932), and the granting of public benefits such as payments to veterans, ibid., pensions, ibid., and patent rights, 

United States v. Duell, 172 U. S. 576, 582–583 (1899). 

Our opinions governing the public rights exception have

not always spoken in precise terms. This is an “area of frequently arcane distinctions and confusing precedents.” 

Thomas v. Union Carbide Agricultural Products Co., 473 

U. S. 568, 583 (1985) (internal quotation marks omitted). 

The Court “has not ‘definitively explained’ the distinction

between public and private rights,” and we do not claim to 

do so today. Oil States Energy Services, LLC v. Greene’s 

Energy Group, LLC, 584 U. S. 325, 334 (2018). 

 Nevertheless, since Murray’s Lessee, this Court has typically evaluated the legal basis for the assertion of the doctrine with care. The public rights exception is, after all, an 

exception. It has no textual basis in the Constitution and 

must therefore derive instead from background legal principles. Murray’s Lessee itself, for example, took pains to justify the application of the exception in that particular instance by explaining that it flowed from centuries-old rules 

concerning revenue collection by a sovereign. See 18 How., 

at 281–285. Without such close attention to the basis for 

each asserted application of the doctrine, the exception 

would swallow the rule.2 

—————— 2The dissent would brush away these careful distinctions and unfurl a

new rule: that whenever Congress passes a statute “entitl[ing] the Government to civil penalties,” the defendant’s right to a jury and a neutral 

Article III adjudicator disappears. See post, at 2 (opinion of SOTOMAYOR, 

J.). It bases this rule not in the constitutional text (where it would find 
 

18 SEC v. JARKESY 

Opinion of the Court 

From the beginning we have emphasized one point: “To

avoid misconstruction upon so grave a subject, we think it 

proper to state that we do not consider congress can . . . 

withdraw from judicial cognizance any matter which, from 

its nature, is the subject of a suit at the common law, or in

equity, or admiralty.” Murray’s Lessee, 18 How., at 284. We 

have never embraced the proposition that “practical” considerations alone can justify extending the scope of the public rights exception to such matters. Stern, 564 U. S., at 

501. “[E]ven with respect to matters that arguably fall 

within the scope of the ‘public rights’ doctrine, the presumption is in favor of Article III courts.” Northern Pipeline Constr. Co., 458 U. S., at 69, n. 23 (plurality opinion) (citing 

Glidden Co. v. Zdanok, 370 U. S. 530, 548–549, and n. 21 

(1962) (plurality opinion)). And for good reason: “Article III

could neither serve its purpose in the system of checks and 

balances nor preserve the integrity of judicial decisionmaking if the other branches of the Federal Government could 

confer the Government’s ‘judicial Power’ on entities outside 

—————— 

no foothold), nor in the ratification history (where again it would find no

support), nor in a careful, category-by-category analysis of underlying legal principles of the sort performed by Murray’s Lessee (which it does not 

attempt), nor even in a case-specific functional analysis (also not attempted). Instead, the dissent extrapolates from the outcomes in cases 

concerning unrelated applications of the public rights exception and from 

one opinion, Atlas Roofing Co. v. Occupational Safety and Health Review 

Comm’n, 430 U. S. 442 (1977). The result is to blur the distinctions our 

cases have drawn in favor of the legally unsound principle that just because the Government may extract civil penalties in administrative tribunals in some contexts, it must always be able to do so in all contexts. 

The dissent also appeals to practice, ignoring that the statute Jarkesy

and Patriot28 have been prosecuted under is barely over a decade old. It 

is also unclear how practice could transmute a private right into a public 

one, or how the absence of legal challenges brought by one generation

could waive the individual rights of the next. Practice may be probative

when it reflects the settled institutional understandings of the branches. 

That case is far weaker when the rights of individuals are directly at 

stake. 
 

 

 

Cite as: 603 U. S. ____ (2024) 19 

Opinion of the Court 

Article III.” Stern, 564 U. S., at 484. 

2 

This is not the first time we have considered whether the 

Seventh Amendment guarantees the right to a jury trial “in

the face of Congress’ decision to allow a non-Article III tribunal to adjudicate” a statutory “fraud claim.” 492 U. S., at 

37, 50. We did so in Granfinanciera, and the principles

identified in that case largely resolve this one. 

Granfinanciera involved a statutory action for fraudulent 

conveyance. As codified in the Bankruptcy Code, the claim 

permitted a trustee to void a transfer or obligation made by

the debtor before bankruptcy if the debtor “received less

than a reasonably equivalent value in exchange for such 

transfer or obligation.” 11 U. S. C. §548(a)(2)(A) (1982 ed., 

Supp. V). Actions for fraudulent conveyance were well

known at common law. 492 U. S., at 43. Even when Congress added these claims to the Bankruptcy Code in 1978,

see 92 Stat. 2600, it preserved parties’ rights to a trial by 

jury, 492 U. S., at 49–50. In 1984, however, Congress designated fraudulent conveyance actions “core [bankruptcy] 

proceedings” and authorized non-Article III bankruptcy

judges to hear them without juries. Id., at 50. 

The issue in Granfinanciera was whether this designation was permissible under the public rights exception. 

Ibid. We explained that it was not. Although Congress had

assigned fraudulent conveyance claims to bankruptcy

courts, that assignment was not dispositive. See id., at 52. 

What mattered, we explained, was the substance of the

suit. “[T]raditional legal claims” must be decided by courts,

“whether they originate in a newly fashioned regulatory

scheme or possess a long line of common-law forebears.” 

Ibid. To determine whether the claim implicated the Seventh Amendment, the Court applied the principles distilled 

in Tull. We examined whether the matter was “from [its]

nature subject to ‘a suit at common law.’” 492 U. S., at 56 
 

 

 

 

 

20 SEC v. JARKESY 

Opinion of the Court 

(some internal quotation marks omitted); see id., at 43–50. 

A survey of English cases showed that “actions to recover 

. . . fraudulent transfers were often brought at law in late

18th-century England.” Id., at 43. The remedy the trustee

sought was also one “traditionally provided by law courts.” 

Id., at 49. Fraudulent conveyance actions were thus “quintessentially suits at common law.” Id., at 56. 

We also considered whether these actions were “closely 

intertwined” with the bankruptcy regime. Id., at 54. Some 

bankruptcy claims, such as “creditors’ hierarchically ordered claims to a pro rata share of the bankruptcy res,” id., 

at 56, are highly interdependent and require coordination. 

Resolving such claims fairly is only possible if they are all

submitted at once to a single adjudicator. Otherwise, parties with lower priority claims can rush to the courthouse 

to seek payment before higher priority claims exhaust the

estate, and an orderly disposition of a bankruptcy is impossible. Other claims, though, can be brought in standalone 

suits, because they are neither prioritized nor subordinated

to related claims. Since fraudulent conveyance actions fall 

into that latter category, we concluded that these actions 

were not “closely intertwined” with the bankruptcy process. 

Id., at 54. We also noted that Congress had already authorized jury trials for certain bankruptcy matters, demonstrating that jury trials were not generally “incompatible” with 

the overall regime. Id., at 61–62 (internal quotation marks 

omitted).

We accordingly concluded that fraudulent conveyance actions were akin to “suits at common law” and were not inseparable from the bankruptcy process. Id., at 54, 56. The 

public rights exception therefore did not apply, and a jury 

was required. 

3 

Granfinanciera effectively decides this case. Even when 

an action “originate[s] in a newly fashioned regulatory 
 

Cite as: 603 U. S. ____ (2024) 21 

Opinion of the Court 

scheme,” what matters is the substance of the action, not 

where Congress has assigned it. Id., at 52. And in this case, 

the substance points in only one direction. 

According to the SEC, these are actions under the “antifraud provisions of the federal securities laws” for “fraudulent conduct.” App. to Pet. for Cert. 72a–73a (opinion of the 

Commission). They provide civil penalties, a punitive remedy that we have recognized “could only be enforced in

courts of law.” Tull, 481 U. S., at 422. And they target the

same basic conduct as common law fraud, employ the same 

terms of art, and operate pursuant to similar legal principles. See supra, at 10–12. In short, this action involves a 

“matter[] of private rather than public right.” Granfinanciera, 492 U. S., at 56. Therefore, “Congress may not ‘withdraw’” it “‘from judicial cognizance.’” Stern, 564 U. S., at 

484 (quoting Murray’s Lessee, 18 How., at 284). 

4 

 Notwithstanding Granfinanciera, the SEC contends the 

public rights exception still applies in this case because

Congress created “new statutory obligations, impose[d] civil

penalties for their violation, and then commit[ted] to an administrative agency the function of deciding whether a violation ha[d] in fact occurred.” Brief for Petitioner 21 (internal quotation marks omitted).

The foregoing from Granfinanciera already does away

with much of the SEC’s argument. Congress cannot “conjure away the Seventh Amendment by mandating that traditional legal claims be . . . taken to an administrative tribunal.” 492 U. S., at 52. Nor does the fact that the SEC 

action “originate[d] in a newly fashioned regulatory

scheme” permit Congress to siphon this action away from

an Article III court. Ibid. The constructive fraud claim in 

Granfinanciera was also statutory, see id., at 37, but we 

nevertheless explained that the public rights exception did

not apply. Again, if the action resembles a traditional legal 
 

22 SEC v. JARKESY 

Opinion of the Court 

claim, its statutory origins are not dispositive. See id., at 

52, 56. 

The SEC’s sole remaining basis for distinguishing Granfinanciera is that the Government is the party prosecuting

this action. See Brief for Petitioner 26–28; see also Tr. of 

Oral Arg. 25 (Principal Deputy Solicitor General) (the “critical distinction” in the public rights analysis is “enforcement by the executive”); id., at 26 (identifying as “the constitutionally relevant distinction” that “this is something 

that has been assigned to a federal agency to enforce”). But 

we have never held that “the presence of the United States 

as a proper party to the proceeding is . . . sufficient” by itself 

to trigger the exception. Northern Pipeline Constr. Co., 458 

U. S., at 69, n. 23 (plurality opinion). Again, what matters

is the substance of the suit, not where it is brought, who

brings it, or how it is labeled. See ibid. The object of this

SEC action is to regulate transactions between private individuals interacting in a pre-existing market. To do so, the 

Government has created claims whose causes of action are 

modeled on common law fraud and that provide a type of 

remedy available only in law courts. This is a common law 

suit in all but name. And such suits typically must be adjudicated in Article III courts. 

5 

The principal case on which the SEC and the dissent rely 

is Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 430 U. S. 442 (1977). Because the public 

rights exception as construed in Atlas Roofing does not extend to these civil penalty suits for fraud, that case does not

control. And for that same reason, we need not reach the 

suggestion made by Jarkesy and Patriot28 that Tull and 

Granfinanciera effectively overruled Atlas Roofing to the 

extent that case construed the public rights exception to allow the adjudication of civil penalty suits in administrative 
 

Cite as: 603 U. S. ____ (2024) 23 

Opinion of the Court 

tribunals.3 

The litigation in Atlas Roofing arose under the Occupational Safety and Health Act of 1970 (OSH Act), a federal 

regulatory regime created to promote safe working conditions. Id., at 444–445. The Act authorized the Secretary of 

Labor to promulgate safety regulations, and it empowered 

the Occupational Safety and Health Review Commission 

(OSHRC) to adjudicate alleged violations. Id., at 445–446. 

If a party violated the regulations, the agency could impose 

civil penalties. Id., at 446. 

Unlike the claims in Granfinanciera and this action, the 

OSH Act did not borrow its cause of action from the common 

law. Rather, it simply commanded that “[e]ach employer 

. . . shall comply with occupational safety and health standards promulgated under this chapter.” 84 Stat. 1593, 29 

U. S. C. §654(a)(2) (1976 ed.). These standards bring no 

common law soil with them. Cf. Hansen, 599 U. S., at 778. 

Rather than reiterate common law terms of art, they instead resembled a detailed building code. For example, the

OSH Act regulations directed that a ground trench wall of

“Solid Rock, Shale, or Cemented Sand and Gravels” could 

be constructed at a 90 degree angle to the ground. 29 CFR 

§1926.652, Table P–1 (1976); see Atlas Roofing, 430 U. S., 

at 447 (discussing Table P–1). But a wall of “Compacted

Angular Gravels” needed to be sloped at 63 degrees, and a 

wall of “Well Rounded Loose Sand” at 26 degrees. 

§1926.652, Table P–1. The purpose of this regime was not 

to enable the Federal Government to bring or adjudicate 

—————— 3The dissent chides us for “leav[ing] open the possibility that Granfinanciera might have overruled Atlas Roofing.” Post, at 25, n. 8 (opinion 

of SOTOMAYOR, J.). But the author of Atlas Roofing certainly thought 

that Granfinanciera may have done so. See Granfinanciera, 492 U. S., 

at 79 (White, J., dissenting) (“Perhaps . . . Atlas Roofing is no longer good 

law after today’s decision.”); see also id., at 71, n. 1 (Granfinanciera “can 

be read as overruling or severely limiting” Atlas Roofing). 
 

 

 

24 SEC v. JARKESY 

Opinion of the Court 

claims that traced their ancestry to the common law. Rather, Congress stated that it intended the agency to “develop[] innovative methods, techniques, and approaches for 

dealing with occupational safety and health problems.” 29 

U. S. C. §651(b)(5) (1976 ed.). In both concept and execution, the Act was self-consciously novel. 

Facing enforcement actions, two employers alleged that 

the adjudicatory authority of the OSHRC violated the Seventh Amendment. See Atlas Roofing, 430 U. S., at 448–449. 

The Court rejected the challenge, concluding that “when

Congress creates new statutory ‘public rights,’ it may assign their adjudication to an administrative agency with

which a jury trial would be incompatible, without violating 

the Seventh Amendment[].” Id., at 455. As the Court explained, the case involved “a new cause of action, and remedies therefor, unknown to the common law.” Id., at 461. 

The Seventh Amendment, the Court concluded, was accordingly “no bar to . . . enforcement outside the regular courts 

of law.” Ibid. 

The cases that Atlas Roofing relied upon did not extend

the public rights exception to “traditional legal claims.” 

Granfinanciera, 492 U. S., at 52. Instead, they applied the

exception to actions that were “‘not . . . suit[s] at common

law or in the nature of such . . . suit[s].’” Atlas Roofing, 430 

U. S., at 453 (quoting Jones & Laughlin Steel Corp., 301 

U. S., at 48); see Atlas Roofing, 430 U. S., at 450–451 (discussing, e.g., Murray’s Lessee, Ex parte Bakelite Corp., 

Helvering v. Mitchell, 303 U. S. 391 (1938), and Oceanic 

Steam Navigation Co.). Indeed, the Court recognized that

if a case did involve a common law action or its equivalent, 

a jury was required. See 430 U. S., at 455 (“‘[W]here the 

action involves rights and remedies recognized at common 

law, it must preserve to parties their right to a jury trial.’” 

(quoting Pernell v. Southall Realty, 416 U. S. 363, 383 

(1974)); Atlas Roofing, 430 U. S., at 458–459 (jury required 
 

Cite as: 603 U. S. ____ (2024) 25 

Opinion of the Court 

when “courts of law supplied a cause of action and an adequate remedy to the litigant”). 

Atlas Roofing concluded that Congress could assign the

OSH Act adjudications to an agency because the claims

were “unknown to the common law.” 430 U. S., at 461. The 

case therefore does not control here, where the statutory 

claim is “‘in the nature of ’” a common law suit. Id., at 453 

(quoting Jones & Laughlin, 301 U. S., at 48). As we have 

explained, Jarkesy and Patriot28 were prosecuted for

“fraudulent conduct,” App. to Pet. for Cert. 72a, and the pertinent statutory provisions derive from, and are interpreted 

in light of, their common law counterparts, see 15 U. S. C.

§§77q(a)(2), 78j(b), 80b–6(4); 17 CFR §§240.10b–5(b),

275.206(4)–8(a)(1); Basic Inc., 485 U. S., at 253 (opinion of 

White, J.).

The reasoning of Atlas Roofing cannot support any 

broader rule. The dissent chants “Atlas Roofing” like a 

mantra, but no matter how many times it repeats those 

words, it cannot give Atlas Roofing substance that it lacks.4 

—————— 4Reading the dissent, one might also think that Atlas Roofing is among

this Court’s most celebrated cases. As the concurrence shows, Atlas Roofing represents a departure from our legal traditions. See post, at 12–20 

(opinion of GORSUCH, J.).

This view is also reflected in the scholarship. Commentators writing

comprehensively on Article III and agency adjudication have often 

simply ignored the case. See, e.g., R. Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915 (1988) (no

citation to Atlas Roofing); J. Harrison, Public Rights, Private Privileges,

and Article III, 54 Ga. L. Rev. 143 (2019) (same); W. Baude, Adjudication

Outside Article III, 133 Harv. L. Rev. 1511 (2020) (same). 

Others who have considered it have offered nothing but a variety of 

criticisms. See, e.g., R. Kirst, Administrative Penalties and the Civil 

Jury: The Supreme Court’s Assault on the Seventh Amendment, 126 U. 

Pa. L. Rev. 1281, 1294 (1978) (through its “careless use of precedent,” 

Atlas Roofing did “not recognize or [mis]understood” “careful distinctions 

developed by . . . earlier judges”); G. Young, Federal Courts & Federal 

Rights, 45 Brooklyn L. Rev. 1145, 1153 (1979) (“The Atlas Court . . . 

failed to offer an adequate justification for its interpretation of the sev-
 

26 SEC v. JARKESY 

Opinion of the Court 

Even as Atlas Roofing invoked the public rights exception,

the definition it offered of the exception was circular. The 

exception applied, the Court said, “in cases in which ‘public 

rights’ are being litigated—e. g., cases in which the Government sues in its sovereign capacity to enforce public rights

created by statutes.” 430 U. S., at 450; see id., at 458. 

After Atlas Roofing, this Court clarified in Tull that the 

Seventh Amendment does apply to novel statutory regimes,

so long as the claims are akin to common law claims. See 

481 U. S., at 421–423. In addition, we have explained that

the public rights exception does not apply automatically 

whenever Congress assigns a matter to an agency for adjudication. See Granfinanciera, 492 U. S., at 52. 

For its part, the dissent also seems to suggest that Atlas 

Roofing establishes that the public rights exception applies 

whenever a statute increases governmental efficiency. 

Post, at 15 (opinion of SOTOMAYOR, J.). Again, our precedents foreclose this argument. As Stern explained, effects

like increasing efficiency and reducing public costs are not

enough to trigger the exception. See 564 U. S., at 501; INS 

v. Chadha, 462 U. S. 919, 944 (1983). Otherwise, evading 

—————— 

enth amendment, either in terms of precedent or the language and history of the amendment.”); M. Redish & D. La Fave, Seventh Amendment 

Right to Jury Trial in Non-Article III Proceedings: A Study in Dysfunctional Constitutional Theory, 4 Wm. & Mary Bill of Right J. 407, 436 

(1995) (criticizing Atlas Roofing for failing to “provid[e] a principled basis

upon which to determine the proper scope of congressional power to remove the civil jury from federal adjudications”); V. Amar, Implementing

an Historical Version of the Jury in an Age of Administrative Factfinding

and Sentencing Guidelines, 47 S. Tex. L. Rev. 291, 298 (2005) (questioning Atlas Roofing for “invert[ing] and turn[ing] on its head the Apprendi

doctrine’s central insight that juries are most important to check the 

power of the state” (emphasis deleted)); C. Nelson, Adjudication in the 

Political Branches, 107 Colum. L. Rev. 559, 604–605, and n. 189 (2007) 

(describing Atlas Roofing as “misus[ing]” precedent to “deny the novelty

of its holding” and “drive a wedge” into the traditional understanding of

the public-private rights distinction). We express no opinion on these 

various criticisms. 
Cite as: 603 U. S. ____ (2024) 27 

Opinion of the Court 

the Seventh Amendment would become nothing more than

a game, where the Government need only identify some 

slight advantage to the public from agency adjudication to 

strip its target of the protections of the Seventh Amendment. 

The novel claims in Atlas Roofing had never been brought 

in an Article III court. By contrast, law courts have dealt

with fraud actions since before the founding, and Congress

had authorized the SEC to bring such actions in Article III

courts and still authorizes the SEC to do so today. See 3 

Blackstone 41–42; §§77t, 78u, 80b–9. Given the judiciary’s

long history of handling fraud claims, it cannot be argued 

that the courts lack the capacity needed to adjudicate such

actions. 

 In short, Atlas Roofing does not conflict with our conclusion. When a matter “from its nature, is the subject of a

suit at the common law,” Congress may not “withdraw [it] 

from judicial cognizance.” Murray’s Lessee, 18 How., at 284. 

* * * 

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. That is the very opposite of the separation of powers that the Constitution demands. Jarkesy and Patriot28 are entitled to a jury trial in

an Article III court. We do not reach the remaining constitutional issues and affirm the ruling of the Fifth Circuit on

the Seventh Amendment ground alone.

The judgment of the Court of Appeals for the Fifth Circuit

is affirmed, and the case is remanded for further proceedings consistent with this opinion. 

It is so ordered. 
 

_________________ 

_________________ 

Cite as: 603 U. S. ____ (2024) 1 

GORSUCH, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 22–859 

SECURITIES AND EXCHANGE COMMISSION, 

PETITIONER v. GEORGE R. JARKESY, JR., 

ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[June 27, 2024]

 JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,

concurring. 

The Court decides a single issue: Whether the Security

and Exchange Commission’s use of in-house hearings to 

seek civil penalties violates the Seventh Amendment right 

to a jury trial. It does. As the Court details, the government

has historically litigated suits of this sort before juries, and

the Seventh Amendment requires no less.

I write separately to highlight that other constitutional

provisions reinforce the correctness of the Court’s course.

The Seventh Amendment’s jury-trial right does not work

alone. It operates together with Article III and the Due Process Clause of the Fifth Amendment to limit how the government may go about depriving an individual of life, liberty, or property. The Seventh Amendment guarantees the 

right to trial by jury. Article III entitles individuals to an 

independent judge who will preside over that trial. And due 

process promises any trial will be held in accord with timehonored principles. Taken together, all three provisions 

vindicate the Constitution’s promise of a “fair trial in a fair

tribunal.” In re Murchison, 349 U. S. 133, 136 (1955). 

I 

In March 2013, the SEC’s Commissioners approved 
 

 

 

2 SEC v. JARKESY 

GORSUCH, J., concurring 

charges against Mr. Jarkesy. The charges were serious; the 

agency accused him of defrauding investors. The relief the 

agency sought was serious, too: millions of dollars in civil 

penalties. See SEC, Division of Enforcement’s Post-Hearing Memorandum of Law in In re John Thomas Capital 

Management Group, LLC, Admin. Proc. File No. 3–15255, 

pp. 28–29 (SEC, Apr. 7, 2014). For most of the SEC’s 90-

year existence, the Commission had to go to federal court to 

secure that kind of relief against someone like Mr. Jarkesy. 

Ante, at 3–4. Proceeding that way in this case hardly would 

have promised him an easy ride. But it would have at least 

guaranteed Mr. Jarkesy a jury, an independent judge, and 

traditional procedures designed to ensure that anyone

caught up in our judicial system receives due process. 

In 2010, however, all that changed. With the passage of

the Dodd Frank Act, Congress gave the SEC an alternative

to court proceedings. Now, the agency could funnel cases 

like Mr. Jarkesy’s through its own “adjudicatory” system. 

See 124 Stat. 1376, 1862–1865. That is the route the SEC 

chose when it filed charges against Mr. Jarkesy. 

There is little mystery why. The new law gave the SEC’s

Commissioners—the same officials who authorized the suit 

against Mr. Jarkesy—the power to preside over his case 

themselves and issue judgment. To be sure, the Commissioners opted, as they often do, to send Mr. Jarkesy’s case 

in the first instance to an “administrative law judge” (ALJ).

See 17 CFR §201.110 (2023). But the title “judge” in this

context is not quite what it might seem. Yes, ALJs enjoy 

some measure of independence as a matter of regulation 

and statute from the lawyers who pursue charges on behalf 

of the agency. But they remain servants of the same master—the very agency tasked with prosecuting individuals 

like Mr. Jarkesy. This close relationship, as others have

long recognized, can make it “extremely difficult, if not impossible, for th[e ALJ] to convey the image of being an impartial fact finder.” B. Segal, The Administrative Law 
Cite as: 603 U. S. ____ (2024) 3 

GORSUCH, J., concurring 

Judge, 62 A. B. A. J. 1424, 1426 (1976). And with a jury out

of the picture, the ALJ decides not just the law but the facts 

as well.1 

Going in, then, the odds were stacked against Mr.

Jarkesy. The numbers confirm as much: According to one

report, during the period under study the SEC won about

90% of its contested in-house proceedings compared to 69% 

of its cases in court. D. Thornley & J. Blount, SEC In-House 

Tribunals: A Call for Reform, 62 Vill. L. Rev. 261, 286 

(2017) (Thornley). Reportedly, too, one of the SEC’s handful

of ALJs even warned individuals during settlement discussions that he had found defendants liable in every contested

case and never once “‘ruled against the agency’s enforcement division.’” Axon Enterprise, Inc. v. FTC, 598 U. S. 

175, 213–214 (2023) (GORSUCH, J., concurring in judgment).

The shift from a court to an ALJ didn’t just deprive Mr.

Jarkesy of the right to an independent judge and a jury. He 

also lost many of the procedural protections our courts supply in cases where a person’s life, liberty, or property is at 

stake. After an agency files a civil complaint in court, a defendant may obtain from the SEC a large swathe of documents relevant to the lawsuit. See Fed. Rule Civ. Proc. 

26(b)(1). He may subpoena third parties for testimony and 

documents and take 10 oral depositions—more with the 

court’s permission. Rule 45; Rule 30(a)(2)(A)(i). A court has 

flexibility, as well, to set deadlines for discovery and other

matters to meet the needs of the case. See Rule 16. And 

—————— 1 In many agencies, litigants are not even entitled to have ALJs, with 

their modicum of protections, decide their cases. These agencies use “administrative judges.” Some agencies can replace these administrative

judges if they don’t like their decisions. And some of these judges may

move in and out of prosecutorial and adjudicatory roles, or move in and 

out of the very industries their agencies regulate. See United States v. 

Arthrex, Inc., 594 U. S. 1, 36–37 (2021) (GORSUCH, J., concurring in part 

and dissenting in part). 
 

4 SEC v. JARKESY 

GORSUCH, J., concurring 

come trial, the Federal Rules of Evidence apply, meaning 

that hearsay is generally inadmissible and witnesses must

usually testify in person, subject to cross-examination. See 

Fed. Rule Evid. 802. 

Things look very different in agency proceedings. The 

SEC has a responsibility to provide “documents that contain material exculpatory evidence.” 17 CFR 

§201.230(b)(3). But the defendant enjoys no general right 

to discovery. Though ALJs enjoy the power to issue subpoenas on the request of litigants like Mr. Jarkesy,

§201.232(a), they “often decline to issue [them] or choose to

significantly narrow their scope,” G. Mark, SEC and CFTC

Administrative Proceedings, 19 U. Pa. J. Const. L. 45, 68

(2016). Oral depositions are capped at five, with another

two if the ALJ grants permission. §201.233(a). In some 

cases, an administrative trial must take place as soon as 1 

month after service of the charges, and that hearing must 

follow within 10 months in even the most complex matters.

§201.360(a)(2)(ii). The rules of evidence, including their 

prohibition against hearsay, do not apply with the same rigor they do in court. §201.235(a)(5); see §201.230. For that 

reason, live testimony often gives way to “investigative testimony”—that is, a “sworn statement” taken outside the 

presence of the defendant or his counsel. §201.235(b). 

How did all this play out in Mr. Jarkesy’s case? Accompanying its charges, the SEC disclosed 700 gigabytes of 

data—equivalent to between 15 and 25 million pages of information—it had collected during its investigation. App.

to Pet. for Cert. 164a; Complaint in Jarkesy v. U. S. SEC, 

No. 1:14–cv–00114 (DDC, Jan. 29, 2014), ECF Doc. 1, ¶49,

pp. 12–13. Over Mr. Jarkesy’s protest that it would take 

“two lawyers or paralegals working twelve-hour days over

four decades to review,” ibid., the ALJ gave Mr. Jarkesy 10

months to prepare for his hearing, see App. to Pet. for Cert.

156a. Then, after conducting that hearing, the ALJ turned 

around and obtained from the Commission “an extension of 
 

Cite as: 603 U. S. ____ (2024) 5 

GORSUCH, J., concurring 

six months to file [her] initial decision.” In re John Thomas 

Capital Management Group LLC, SEC Release No. 9631, 

p. 1 (Aug. 13, 2014). The reason? The “‘size and complexity 

of the proceeding.’” Id., at 2. When that decision eventually arrived seven months after the hearing, the ALJ agreed

with the SEC on every charge. See App. to Pet. for Cert. 

155a–156a, 212a. 

Mr. Jarkesy had the right to appeal to the Commission,

but appeals to that politically accountable body (again, the

same body that approved the charges) tend to go about as

one might expect. The Commission may decline to review

the ALJ’s decision. §201.411(b)(2). If it chooses to hear the 

case, it may increase the penalty imposed on the defendant. 

Thornley 286. A defendant unhappy with the result can 

seek further review in court, though that process will take

more time and money, too. Nor will he find a jury there, 

only a judge who must follow the agency’s findings if they

are supported by “‘more than a mere scintilla’” of evidence. 

Biestek v. Berryhill, 587 U. S. 97, 103 (2019). 

Mr. Jarkesy filed an appeal anyway. The Commission 

agreed to review the ALJ’s decision. It then afforded itself 

the better part of six years to issue an opinion. And, after 

all that, it largely agreed with the ALJ. See App. to Pet. for 

Cert. 71a–74a. None of this likely came as a surprise to the

SEC employees in the Division of Enforcement responsible

for pressing the action against Mr. Jarkesy. While his appeal was pending, employees in that division—including an 

“‘Enforcement Supervisor’” in the regional office prosecuting Mr. Jarkesy—accessed confidential memos by the Commissioners’ advisors about his appeal. See SEC, Second 

Commission Statement Relating to Certain Administrative

Adjudications 3 (June 2, 2023). 

II 

A 

If administrative proceedings like Mr. Jarkesy’s seem a 
 

 

6 SEC v. JARKESY 

GORSUCH, J., concurring 

thoroughly modern development, the British government

and its agents engaged in a strikingly similar strategy in 

colonial America. Colonial administrators routinely 

steered enforcement actions out of local courts and into 

vice-admiralty tribunals where they thought they would 

win more often. These tribunals lacked juries. They lacked 

truly independent judges. And the procedures materially

differed from those available in everyday common-law 

courts. 

The vice-admiralty courts in the Colonies began as rough

equivalents of English courts of admiralty. E. Surrency,

The Courts in the American Colonies, 11 Am. J. Legal Hist.

347, 355 (1967). These courts generally concerned themselves with maritime matters arising on “the oceans and

rivers and their immediate shores.” C. Ubbelohde, The 

Vice-Admiralty Courts and the American Revolution 19 

(1960) (Ubbelohde). And the proceedings they used accorded more with civil law traditions than common law 

ones. Among other things, this meant officials could try 

cases against colonists without a jury. Id., at 21. 

Confined to admiralty disputes, perhaps the lack of a jury 

would have proven unexceptional (as juries were not usually required in such cases then, nor are they today). See, 

e.g., Lewis v. Lewis & Clark Marine, Inc., 531 U. S. 438, 448 

(2001). But Parliament deployed these juryless tribunals

in the Colonies to new ends that, according to John Adams,

could fill “‘volumes.’” Ubbelohde vii. The creep away from

the original province of those courts began with the grant

of authority over violations of certain trade and customs

laws. But in the decade before the Revolution, the drip,

drip, drip of expanding power became a torrent, as Parliament allowed more and more actions to be brought in colonial vice-admiralty courts.

Many of the matters added to vice-admiralty jurisdiction 

in the Colonies would have required juries in England. Id., 

at 112. But as the Massachusetts royal governor explained, 
 

Cite as: 603 U. S. ____ (2024) 7 

GORSUCH, J., concurring 

colonial juries “‘were not to be trusted.’” D. Lovejoy, Rights

Imply Equality: The Case Against Admiralty Jurisdiction 

in America, 1764–1776, 16 Wm. & Mary Q. 459, 468 (1959).

Even violations that did not implicate the jury right normally would have been heard in England “before a court in

[one’s] own neighborhood or county where [one] could count 

on traditional common-law procedure.” Id., at 471. But by

expanding the reach of vice-admiralty jurisdiction in the

Colonies, Parliament denied similar protections to Americans. See Erlinger v. United States, 602 U. S. ___, ___ 

(2024) (slip op., at 5). 

Vice-admiralty court judges also lacked independence.

While judges in England since the end of the seventeenth 

century generally enjoyed the protection of tenure during 

good behavior, colonial judges usually served at the pleasure of the royal administration. See United States v. Will, 

449 U. S. 200, 218–219 (1980). And, doing away with the

pretense of impartiality entirely, some vice-admiralty

judges held dual appointments—for instance, as colonial attorneys general and vice-admiralty judges. Ubbelohde 162– 

163. 

Like the modern SEC, British colonial officials were not 

required to bring many of their cases before the vice-admiralty courts. Often, Parliament gave those officials the option to proceed in either the ordinary common-law courts or

the vice-admiralty courts. Unsurprisingly, though, they

sought to file where they were most likely to win. And “[i]n

this contest, the vice-admiralty courts were usually the victors.” Id., at 21. 

B 

The abuses of these courts featured prominently in the

calls for revolution. In the First Continental Congress, the 

assembled delegates condemned how Parliament “extend[ed] the jurisdiction of Courts of Admiralty,” complained how colonial judges were “dependent on the 
 

8 SEC v. JARKESY 

GORSUCH, J., concurring 

Crown,” and demanded the right to the “common law of 

England” and the “great and inestimable privilege” of a jury 

trial. Declaration and Resolves of the First Continental 

Congress, Oct. 14, 1774, in 1 Journals of the Continental

Congress, 1774–1789, pp. 68–69 (W. Ford 1904 ed.). Two 

years later, the drafters of the Declaration of Independence 

repeated these concerns, admonishing the King for 

“ma[king] Judges dependent on his Will alone,” ¶11, and 

“[f]or depriving [the colonists] in many cases, of the benefits 

of Trial by Jury,” ¶20. By that point, however, the “musket 

fire at Lexington and Concord . . . signaled the end not only 

of the vice-admiralty courts, but of all British rule in America.” Ubbelohde 190. 

When the smoke settled, the American people went to

great lengths to prevent a backslide toward anything like

the vice-admiralty courts. Erlinger, 602 U. S., at ___–___ 

(slip op., at 5–6). One product of these efforts was Article 

III of the Constitution. There, the Constitution provided

that “[t]he judicial Power”—the power over “Cases” and

“Controversies”—would lie with life-tenured, salary-protected

judges. §§1–2; see Oil States Energy Services, LLC v. 

Greene’s Energy Group, LLC, 584 U. S. 325, 346 (2018) 

(GORSUCH, J., dissenting). As the Court has recognized,

this meant the Executive Branch could “exercise no part of

th[e] judicial power.” Murray’s Lessee v. Hoboken Land & 

Improvement Co., 18 How. 272, 275 (1856), “no matter how 

court-like [its] decisionmaking process might appear,” Ortiz 

v. United States, 585 U. S. 427, 465 (2018) (ALITO, J., dissenting). Nor could Congress “withdraw from judicial cognizance any matter which, from its nature, is the subject of 

a suit at the common law, or in equity, or admiralty”—the 

traditional scope of the “judicial Power.” Murray’s Lessee, 

18 How., at 284; see Art. III, §2.

Despite these guarantees, many at the founding thought 

Article III didn’t go far enough. Yes, it promised a defendant an independent judge rather than one dependent on 
 

 

Cite as: 603 U. S. ____ (2024) 9 

GORSUCH, J., concurring 

those who hold political power. But what would stop Congress from requiring litigants to navigate vice-admiralty’s 

alien procedures in all federal cases? Or from making “federal processes” even more byzantine, so “as to [effectively]

destroy [individual] rights?” Letter from a Federal Farmer 

(Jan. 20, 1788), in 2 The Complete Anti-Federalist 328 (H. 

Storing ed. 1981). 

And what about civil juries? “[T]he jury trial,” one prominent Anti-Federalist observed, “brings with it an open and 

public discussion of all causes, and excludes secret and arbitrary proceedings.” Letter from a Federal Farmer (Jan. 

18, 1788), in id., at 320 (Federal Farmer 15). The participation of ordinary Americans “drawn from the body of the

people” serves another function, too: “If the conduct of 

judges shall . . . tend to subvert the laws, and change the 

forms of government, the jury may check them.” Ibid. As 

originally composed, however, the Constitution promised a

trial by jury for “all Crimes,” but said nothing about civil 

cases. Art III, §2, cl. 3. Some wondered, did this mean 

judges, not juries, would be “left masters as to facts” in civil 

disputes? Federal Farmer 15, at 322. If so, asked another, 

“what satisfaction can we expect from a lordly court of justice, always ready to protect the officers of government

against the weak and helpless citizen”? Essay of a Democratic Federalist (Oct. 17, 1787), in 3 Complete Anti-Federalist 61. 

The answer to these concerns was the Bill of Rights. Erlinger, 602 U. S., at ___ (slip op., at 6). As the Court details, 

the Seventh Amendment promised the right to a jury trial 

in “‘[s]uits at common law.’” Ante, at 8 (quoting Amdt. 7).

But because the Constitution was designed to “endure for 

ages to come,” McCulloch v. Maryland, 4 Wheat. 316, 415 

(1819), this did not mean only those “suits, which the common law recognized among its old and settled proceedings,” 

Parsons v. Bedford, 3 Pet. 433, 447 (1830). The founding 
 

 

 

10 SEC v. JARKESY 

GORSUCH, J., concurring 

generation anticipated the possibility Congress would introduce new causes of action and perhaps new remedies, 

too. See ibid. Accordingly, this Court has long understood 

the Seventh Amendment’s protections to apply in “all [civil]

suits which are not of equity [or] admiralty jurisdiction.” 

Ibid.; accord, ante, at 8–9. In this way, the Seventh Amendment seeks to ensure there will be no juryless vice-admiralty 

courts in the United States. 

The Fifth Amendment’s Due Process Clause addressed 

remaining concerns about the processes that would attend

trials before independent judges and juries. It provided

that the government may not deprive anyone of “life, liberty, or property, without due process of law.” As originally

understood, this provision prohibited the government from 

“depriv[ing] a person of those rights without affording him

the benefit of (at least) those customary procedures to 

which freemen were entitled by the old law of England.” 

Sessions v. Dimaya, 584 U. S. 148, 176 (2018) (GORSUCH, J., 

concurring in part and concurring in judgment) (internal

quotation marks omitted); see Erlinger, 602 U. S., at ___– 

___ (slip op., at 6–7). 

More than that, because it was “the peculiar province of 

the judiciary” to safeguard life, liberty, and property, due 

process often meant judicial process. 1 St. George Tucker, 

Blackstone’s Commentaries, Editor’s App. 358 (1803). That 

is, if the government sought to interfere with those rights,

nothing less than “the process and proceedings of the common law” had to be observed before any such deprivation 

could take place. 3 J. Story, Commentaries on the Constitution of the United States §1783, p. 661 (1833) (Story). In 

other words, “‘due process of law’ generally implie[d] and 

include[d] . . . judex [a judge], regular allegations, opportunity to answer, and a trial according to some settled 

course of judicial proceedings.” Murray’s Lessee, 18 How., 

at 280. This constitutional baseline was designed to serve 
Cite as: 603 U. S. ____ (2024) 11 

GORSUCH, J., concurring 

as “a restraint on the legislative” branch, preventing Congress from “mak[ing] any process ‘due process of law,’ by its

mere will.” Id., at 276. 

C 

These three constitutional provisions were meant to work

together, and together they make quick work of this case. 

In fact, each provision requires the result the Court reaches

today. 

First, because the “‘matter’” before us is one “which, from 

its nature, is the subject of a suit at the common law,” id., 

at 284, “the responsibility for deciding [it] rests with Article 

III judges in Article III courts.” Stern v. Marshall, 564 U. S. 

462, 484 (2011). Nor does it make a difference whether we 

think of the SEC’s action here as a civil-penalties suit or 

something akin to a traditional fraud claim: At the founding, both kinds of actions were tried in common-law courts. 

See ante, at 9–13 (discussing civil penalties); see also, e.g., 

Pasley v. Freeman, 3 T. R. 51, 100 Eng. Rep. 450 (K. B.

1789) (action for fraud); Baily v. Merrell, 3 Bulst. 94, 81 

Eng. Rep. 81 (K. B. 1615) (same). And that tells us all we 

need to know that the SEC’s in-house civil-penalty scheme 

violates Article III by “withdraw[ing]” the matter “from judicial cognizance” and handing it over to the Executive

Branch for an in-house trial. Murray’s Lessee, 18 How., at 

284; see supra, at 7–8. 

Second, because the action the SEC seeks to pursue is not 

the stuff of equity or admiralty jurisdiction but the sort of 

suit historically adjudicated before common-law courts, the

Seventh Amendment guarantees Mr. Jarkesy the right to

have his case decided by a jury of his peers. In this regard, 

it is irrelevant that the SEC derived its power to sue under 

a “new statut[e]” or that the agency proceeded under “a new 

cause of action.” Brief for Petitioner 13, 22 (internal quotation marks omitted). As we have seen, the government cannot evade the Seventh Amendment so easily. See ante, at 
 

 

12 SEC v. JARKESY 

GORSUCH, J., concurring 

9; supra, at 8–10. 

Third, were there any doubt, the Due Process Clause confirms these conclusions. Cf. Murray’s Lessee, 18 How., at 

275 (explaining that the Article III challenge before the 

Court could “best be considered” as raising a due process 

question). Because the penalty the SEC seeks would 

“depriv[e]” Mr. Jarkesy of “property,” Amdt. 5, due process

demands nothing less than “the process and proceedings of

the common law,” 3 Story §1783, at 661. That means the 

regular course of trial proceedings with their usual protections, see Murray’s Lessee, 18 How., at 280, not the use of 

ad hoc adjudication procedures before the same agency responsible for prosecuting the law, subject only to hands-off 

judicial review, see supra, at 10–11. 

III 

A 

The government resists these conclusions. As the government sees it, this case implicates the so-called public rights

exception. One that defeats not only Mr. Jarkesy’s right to

trial by jury, but also his right to proceed before an independent trial judge consistent with traditional judicial processes. That is, on the government’s account, not only does 

the Seventh Amendment fall away; so does the usual operation of Article III and the Due Process Clause. 

In the government’s view, the public rights exception “at 

a minimum allows Congress to create new statutory obligations, impose civil penalties for their violation, and then

commit to an administrative agency the function of deciding

whether a violation has in fact occurred.” Brief for Petitioner 21 (emphasis added; internal quotation marks omitted). Put plainly, all that need be done to dispense almost 

entirely with three separate constitutional provisions is an

Act of Congress creating some new statutory obligation.

And, the government continues, this case easily meets that

standard because the proceeding against Mr. Jarkesy is one 
Cite as: 603 U. S. ____ (2024) 13 

GORSUCH, J., concurring 

“brought by the government against a private party” under

a statute designed “to remedy harm to the public at large.” 

Id., at 24 (internal quotation marks omitted).

The Court rightly rejects these arguments. See ante, at 

19–21. No one denies that, under the public rights exception, Congress may allow the Executive Branch to resolve 

certain matters free from judicial involvement in the first

instance. Ante, at 6, 14–15. But, despite its misleading

name, the exception does not refer to all matters brought

by the government against an individual to remedy public 

harms, or even all those that spring from a statute. See 

ante, at 16–17. Instead, public rights are a narrow class

defined and limited by history. As the Court explains, that 

class has traditionally included the collection of revenue, 

customs enforcement, immigration, and the grant of public 

benefits. Ante, at 15–17. 

How did these matters find themselves categorized as

public rights? Competing explanations abound. Some have 

pointed to ancient practical considerations. In Murray’s 

Lessee, for example, the Court reasoned that the “[i]mperative necessity” of tax collection for a functional state had 

long caused governments to treat “claims for public taxes” 

differently from “all others.” 18 How., at 282. Others have 

theorized that “the core of the judicial power” concerns the

disposition of the “three ‘absolute’ rights” “to life, liberty,

and property.” Wellness Int’l Network, Ltd. v. Sharif, 575 

U. S. 665, 713–714 (2015) (THOMAS, J., dissenting). Public 

rights, the theory goes, involve matters originally understood to fall outside this core. Id., at 714. So, for example,

“[a]lthough Congress could authorize executive agencies to 

dispose of public rights in land—often by means of adjudicating a claimant’s qualifications for a land grant under a 

statute—the United States had to go to the courts if it 

wished to revoke” that grant, which had become the owner’s

private property. Id., at 715. There are still other theories 

yet. See, e.g., Stern, 564 U. S., at 489. 
 

 

14 SEC v. JARKESY 

GORSUCH, J., concurring 

Whatever their roots, traditionally recognized public 

rights have at least one feature in common: a serious and 

unbroken historical pedigree. See Culley v. Marshall, 601 

U. S. 377, 397–398 (2024) (GORSUCH, J., concurring); ante, 

at 14–17. For good reason. If the Article III “judicial

Power” encompasses “the stuff of the traditional actions at

common law tried by the courts of Westminster in 1789,” 

ante, at 14 (internal quotation marks omitted), it follows

that matters traditionally adjudicated outside those courts

might not fall within Article III’s ambit. See Stern, 564 

U. S., at 504–505 (Scalia, J., concurring) (“[A]n Article III 

judge is required in all federal adjudications, unless there

is a firmly established historical practice to the contrary”).

So too with the Due Process Clause. If that clause sets customary common-law practice as the ordinary procedural 

baseline, see Part II–B, supra, clear historical evidence of a 

different practice might warrant a departure from that 

baseline, see Murray’s Lessee, 18 How., at 280. That’s why

this Court has said “‘a process of law . . . must be taken to 

be due process of law’ if it enjoys ‘the sanction of settled usage both in England and in this country.’” Culley, 601 U. S., 

at 397 (GORSUCH, J., concurring) (quoting Hurtado v. California, 110 U. S. 516, 528 (1884)).

With the public rights exception viewed in this light, the

government’s invocation of it in this case cannot succeed. 

Starting with a “‘presumption . . . in favor of Article III 

courts’” and their usual attendant processes, ante, at 18, we 

look for some “deeply rooted” tradition of nonjudicial adjudication before permitting a case to be tried in a different 

forum under different procedures, Culley, 601 U. S., at 397 

(GORSUCH, J., concurring). We have upheld summary procedures for customs collection, for example, because they 

were consistent with both “the common and statute law of 

England prior to the emigration of our ancestors” and “the

laws of many of the States at the time of the adoption of ” 

the Constitution. Murray’s Lessee, 18 How., at 280; see 
 

Cite as: 603 U. S. ____ (2024) 15 

GORSUCH, J., concurring 

ante, at 14–15. But when it comes to the kind of civil-penalty suit before us, that same history points in the opposite 

direction, suggesting actions of this sort belong before an

independent judge, a jury, and decided in a trial that accords with traditional judicial procedures. Ante, at 9–13; 

supra, at 11–12. Just as SEC practices themselves largely 

reflected as recently as 2010. 

B 

If all that’s so, why might the government feel comfortable invoking the public rights exception? To be fair, much 

of it may have to do with this Court. Some of our past decisions have allowed the government to chip away at the

courts’ historically exclusive role in adjudicating private

rights—and juries’ accompanying role in that adjudication.

This process began, of all places, in an admiralty case. 

In Crowell v. Benson, 285 U. S. 22 (1932), this Court faced

a constitutional challenge to the Longshoremen’s and Harbor Workers’ Compensation Act of 1927. The Act directed 

employers to compensate employees for injuries occurring 

at sea. 44 Stat. 1426. The law further assigned primary 

responsibility for deciding liability disputes to an Executive

Branch official, the deputy commissioner of the United 

States Employees’ Compensation Commission. Id., at 

1435–1437; Crowell, 285 U. S., at 42–43. The Court 

acknowledged that this regime empowered the deputy commissioner to decide in the first instance the monetary “liability of one individual to another.” Id., at 51. The Court 

recognized that this amounted to a classic “private right”

suit of the kind traditionally tried in court. Ibid. The Court 

even conceded that, under the law, the factual “findings of

the deputy commissioner, supported by evidence and within

the scope of his authority, shall be final”: An Article III 

court could not review the facts anew. Id., at 46. But the 

Court upheld the scheme and its limited judicial review anyway. 
 

 

16 SEC v. JARKESY 

GORSUCH, J., concurring 

To get there took a dash of fiction and a pinch of surmise. 

From time to time, the Court observed, judges appoint their 

own special “masters and commissioners” to prepare reports on fact issues or damages. Id., at 51. These reports

are nonbinding and “essentially . . . advisory.” Ibid. Judges

themselves remain the decisionmakers. In Crowell, the 

Court embraced the fiction that Executive Branch officials 

might similarly act as assistants or adjuncts to Article III 

courts. And because judges often adopt the proposed findings of their masters and commissioners, the Court surmised, Article III posed no bar to Congress taking a further 

step and requiring judges to treat the findings of Executive 

Branch officials as essentially “final.” Id., at 46. “To hold 

otherwise,” the Court reasoned, “would be to defeat the obvious purpose of the legislation”: “to furnish a prompt, continuous, expert, and inexpensive method for dealing with a

class of questions of fact which are peculiarly suited to examination and determination by an administrative agency

specially assigned to that task.” Ibid. 

Crowell itself only went so far, however. The case fell 

within federal courts’ admiralty jurisdiction, and tribunals

sitting in admiralty in England and America alike had long

heard certain matters falling within the public rights exception. See Culley, 601 U. S., at 398 (GORSUCH, J., concurring). In deciding those matters, courts had long tolerated 

some flexibility in procedures, had long restricted appellate 

review of factual findings, and had always proceeded without a jury. Crowell, 285 U. S., at 45, 53. 

Soon, though, none of that mattered. Almost in a blink, 

the admiralty limitation was discarded, and more and more

agencies began assuming adjudicatory functions previously 

reserved for judges and juries, employing novel procedures 

that sometimes bore faint resemblance to those observed in 

court. Along the way, prominent voices in and out of government expressed concern at this development. Consider 

just two typical examples. Were an agency endowed with 
 

 

Cite as: 603 U. S. ____ (2024) 17 

GORSUCH, J., concurring 

the power to assess civil penalties, advised a committee 

overseen by Attorney General (soon-to-be Justice) Robert 

H. Jackson, “the aggrieved person” should at least “be permitted review de novo by a Federal district court.” Final 

Report of Attorney General’s Committee on Administrative

Procedure 147 (1941). That was the only way, the committee opined, “to resolve any doubts concerning the constitutionality of the procedure.” Ibid. Around the same time, a 

committee of the American Bar Association led by Roscoe

Pound sounded a similar alarm. Administrative agencies, 

the committee warned, had a “tendency to mix up rule making, investigation, prosecution, the advocate’s function, the 

judge’s function, and the function of enforcing the judgment, so that the whole proceeding from end to end is one 

to give effect to a complaint.” Report of the Special Committee on Administrative Law, 63 Ann. Rep. 331, 351

(1938).

The high-water mark of the movement toward agency adjudication may have come in 1977 in Atlas Roofing Co. v. 

Occupational Safety and Health Review Comm’n, 430 U. S. 

442. Some have read that decision to suggest the category 

of public rights might encompass pretty much any case arising under any “‘new statutory obligations,’” Brief for Petitioner 22 (quoting Atlas Roofing, 430 U. S., at 450). It is a 

view the government essentially espouses in this case. But 

without reference to any constitutional text or history to

guide what does or does not qualify as a public right, that

view has (unsurprisingly) proven wholly unworkable. 

It did not take long for this Court to realize as much. Just 

12 years later, in Granfinanciera, S. A. v. Nordberg, 492 

U. S. 33 (1989), this Court cabined Atlas Roofing so narrowly that the author of Atlas Roofing complained that the

Court had “overrul[ed]” it. 492 U. S., at 71, n. 1 (White, J., 

dissenting); see ante, at 23, n. 3. Far from endorsing the

notion that any new statutory obligation could qualify for 
 

 

18 SEC v. JARKESY 

GORSUCH, J., concurring 

treatment as a public right, for example, the Court in Granfinancieria read Atlas Roofing as having “left the term ‘public rights’ undefined.” 492 U. S., at 51, n. 8. And since then 

this Court has, in one case after another, “adhere[d]” only 

to Atlas Roofing’s “general teaching” that Congress may 

constitutionally adopt “new statut[es]” assigning matters

that indeed qualify as “public rights . . . to an administrative agency.” 492 U. S., at 51 (internal quotation marks 

omitted); see, e.g., Stern, 564 U. S., at 489–490; Oil States, 

584 U. S., at 345. 

Yet, even after the Court moved away from Atlas Roofing, 

our public rights jurisprudence remained muddled. Since 

then, the Court has suggested that public rights might include those “involving statutory rights that are integral

parts of a public regulatory scheme.” Granfinanciera, 492 

U. S., at 55, n. 10. We have changed course and tried our 

hand at a five-factor balancing test. See Stern, 564 U. S., 

at 491 (describing Commodity Futures Trading Comm’n v. 

Schor, 478 U. S. 833 (1986)). We have replaced that test 

with one that considers “at least seven different” factors. 

564 U. S., at 504 (Scalia, J., concurring). And at one time 

or another, these factors have included the consideration of 

“the concerns that drove Congress to depart from the requirements of Article III.” Schor, 478 U. S., at 851. So, for 

example, we have asked whether insistence on “the institutional integrity of the Judicial Branch” would “unduly constrict Congress’ ability to take needed and innovative action

pursuant to its Article I powers.” Ibid. 

Today, the Court does much to return us to a more traditional understanding of public rights. Adhering to Granfinancieria, the Court rejects the government’s overbroad 

reading of Atlas Roofing and recognizes that the kind of

atextual and ahistorical (not to mention confusing) tests it 

inspired do little more than ask policy questions the Constitution settled long ago. Yes, a limited category of public

rights were originally and even long before understood to 
Cite as: 603 U. S. ____ (2024) 19 

GORSUCH, J., concurring 

be susceptible to resolution without a court, jury, or the

other usual protections an Article III court affords. But outside of those limited areas, we have no license to deprive 

the American people of their constitutional right to an independent judge, to a jury of their peers, or to the procedural protections at trial that due process normally demands. Let alone do so whenever the government wishes 

to dispense with them.

This Court does not subject other constitutional rights to 

such shabby treatment. We have “reaffirm[ed],” many

times and “emphatically[,] that the First Amendment does 

not permit the State to sacrifice speech for efficiency.” Riley 

v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 

795 (1988). We have rejected a framework for Second 

Amendment challenges that would balance the right to bear 

arms against “‘other important governmental interests.’” 

District of Columbia v. Heller, 554 U. S. 570, 634 (2008). It 

is hornbook Fourth Amendment law that “[a] generalized 

interest in expedient law enforcement cannot, without 

more, justify a warrantless search.” Georgia v. Randolph, 

547 U. S. 103, 115, n. 5 (2006). And even though the Sixth

Amendment’s guarantee of a jury trial in criminal cases 

may have “‘its weaknesses and the potential for misuse,’” 

Duncan v. Louisiana, 391 U. S. 145, 156 (1968), we continue to insist that it “be jealously preserved,” Patton v. 

United States, 281 U. S. 276, 312 (1930); see Ramos v. Louisiana, 590 U. S. 83, 110–111 (2020) (plurality opinion); Erlinger, 602 U. S., at ___ (slip op., at 18) (“There is no efficiency exception to the . . . Sixth Amendmen[t]”).

Why should Article III, the Seventh Amendment, or the

Fifth Amendment’s promise of due process be any different? 

None of them exists to “protec[t] judicial authority for its 

own sake.” Oil States, 584 U. S., at 356 (GORSUCH, J., dissenting). They exist to “protect the individual.” Bond v. 

United States, 564 U. S. 211, 222 (2011). And their protec-
 

20 SEC v. JARKESY 

GORSUCH, J., concurring 

tions are no less vital than those afforded by other constitutional provisions. As American colonists learned under 

British rule, “the right of trial” means little “when the actual administration of justice is dependent upon caprice, or 

favour, [or] the will of rulers.” 3 Story §1568, at 426; id., 

§1783, at 661. In recognizing as much today, the Court essentially follows the advice of Justices Brennan and Marshall, “limit[ing] the judicial authority of non-Article III federal tribunals to th[o]se few, long-established exceptions” 

that bear the sanction of history, and “countenanc[ing] no

further erosion.” Schor, 478 U. S., at 859 (Brennan, J.,

joined by Marshall, J., dissenting). 

C 

The dissent’s competing account of public rights is astonishing. On its telling, the Constitution might impose some

(undescribed) limits on the power of the government to send 

cases “involving the liability of one individual to another” 

to executive tribunals for resolution. Post, at 22 (opinion of 

SOTOMAYOR, J.). But, thanks to public rights doctrine, the 

dissent insists, the Constitution imposes no limits on the 

government’s power to seek civil penalties “outside the regular courts of law where there are no juries.” Post, at 2. In 

that field, the Constitution falls silent. The dissent does not 

even attempt to deploy any of the contrived balancing tests

that emerged in Atlas Roofing’s aftermath to rein in the 

government’s power. But where in Article III, the Seventh 

Amendment, and due process can the dissent find this new 

rule? What about founding-era practice or original meaning? And why would a Constitution drawn up to protect 

against arbitrary government action make it easier for the 

government than for private parties to escape its dictates?

The dissent offers no answers. 

To be sure, the dissent tries to appeal to precedent. It 

even asserts that our decisions support, “without exception,” 

its sweeping conception of public rights doctrine. Post, at 
 

 

Cite as: 603 U. S. ____ (2024) 21 

GORSUCH, J., concurring 

12 (emphasis added). But the dissent’s approach to our

precedents is like a picky child at the dinner table. It selects only a small handful while leaving much else untouched. To start, the dissent lingers briefly on Murray’s 

Lessee—but not long enough to explain the opinion’s conception of Article III, due process, or the extended historical 

inquiry that led the Court to conclude the collection of revenue concerned a public right. See post, at 9–10; supra, at 

8, 10–14. 

The 19th century behind it (for it does not trouble with 

the founding era), the dissent turns to Oceanic Steam Nav. 

Co. v. Stranahan, 214 U. S. 320 (1909). Drawing on that 

decision, the dissent contends that “Congress [has] routinely ‘impose[d] appropriate obligations’” by statute and

given “‘executive officers the power to enforce’” them 

“‘without the necessity of invoking the judicial power.’” 

Post, at 11 (quoting Stranahan, 214 U. S., at 339). Notably

absent from the dissent’s account, however, is the decision’s 

discussion of Congress’s long-recognized and extensive authority over the field of immigration, the area of law at issue 

there. See id., at 339. Unmentioned, too, is Stranahan’s 

explanation that what links immigration to other public 

rights like “tariff[s], . . . internal revenue, taxation,” and 

“foreign commerce” is that, “‘from the beginning[,] Congress has exercised a plenary power’” over them “because 

they all relate to subjects peculiarly within the authority of

the legislative department.” Id., at 334, 339. 

Really, one has to wonder: If the public rights exception 

is as broad and unqualified as the dissent asserts, why did 

our predecessors bother to discuss history or Congress’s peculiar powers when it comes to revenue and immigration?

Why didn’t the Court simply announce the rule the dissent 

would have us announce today: that our Constitution does 

not stand in the way of “agency adjudications of statutory 

claims . . . brought by the Government in its sovereign ca-
 

 

 

22 SEC v. JARKESY 

GORSUCH, J., concurring 

pacity”? Post, at 4. The answer, of course, is that the Constitution has never countenanced the dissent’s notion that 

the Executive is free to reassign virtually any civil case in 

which it is a party to its own tribunals where its own employees decide cases and inconvenient juries and traditional 

trial procedures go by the boards.

That my dissenting colleagues plow ahead anyway with

their remarkable conception of public rights is all the more

puzzling considering how regularly they have argued 

against that sort of sweeping concentration of governmental power. The dissenters have recognized that a “lack of

standardized procedural safeguards” can leave government

enforcement schemes “vulnerable to abuse” and individuals 

subject to coercive “pressure from unchecked prosecutors.” 

Culley, 601 U. S., at 405, 407 (SOTOMAYOR, J., joined by 

KAGAN and JACKSON, JJ., dissenting). They have contended that the Judiciary has an affirmative obligation to

supply “meaningful remedies,” trials before judges and juries included, even when “Congress or the Executive has 

[already] created a remedial process.” Egbert v. Boule, 596 

U. S. 482, 524–525 (2022) (SOTOMAYOR, J., joined by, inter 

alios, KAGAN, J., dissenting) (internal quotation marks 

omitted; emphasis deleted). And like most every current

Member of this Court at one time or another, they have 

acknowledged that the jury-trial right “stands as one of the

Constitution’s most vital protections against arbitrary government.” United States v. Haymond, 588 U. S. 634, 637 

(2019) (plurality opinion).

The dissent’s conception of public rights is so unqualified 

that it refuses to commit itself on the question whether even 

muted forms of judicial review—such as asking executive

tribunals to muster “more than a mere scintilla” of evidence 

in support of their rulings—are constitutionally required in

the essentially unbounded class of cases that fall within its

conception of public rights. See Part I, supra; post, at 8, 

n. 4. Gone, too, is any role for the jury—for why would the 
Cite as: 603 U. S. ____ (2024) 23 

GORSUCH, J., concurring 

government ever go to court if it may more readily secure a 

win before its own employees? The only attempt to mitigate

the havoc its rule would wreak comes when the dissent declares that “‘[t]he public-rights doctrine does not extend to 

. . . criminal matters.’” Post, at 27, n. 9. But the dissent 

does not (and cannot) explain how that fits with all else it 

says. If, as the dissent insists, a public right is any “new

right” that “belongs to the public and inheres in the Government in its sovereign capacity,” post, at 28, what could 

possibly better fit the description than the enforcement of 

new criminal laws? See Shinn v. Martinez Ramirez, 596 

U. S. 366, 376 (2022) (“The power to convict and punish

criminals lies at the heart of the States’ residuary and inviolable sovereignty” (internal quotation marks omitted)).2 

All but admitting its view has no support in “historical

practice dating back to the founding,” the dissent chastises

the Court for daring to rely on that practice to flesh out the

scope of the public rights exception. Post, at 18. It would 

be so much simpler, the dissent says, to adopt its rule permitting the government to skirt oversight by judge and jury

alike whenever it enacts a new law. And, true enough, “a 

principle that the government always wins surely would be 

simple for judges to implement.” United States v. Rahimi, 

602 U. S. ___, ___ (2024) (GORSUCH, J., concurring) (slip op., 

at 6). But looking to original meaning and historical practice informing it is exactly how this Court proceeds in so 

—————— 2The best the dissent can do is to observe that “Article III itself prescribes that ‘[t]he trial of all Crimes . . . shall be by Jury.’ ” Post, at 27, 

n. 9 (quoting §2, cl. 3). That response might be reassuring if the dissent’s 

treatment of the Seventh Amendment didn’t supply a roadmap for working around it. On the dissent’s telling, the Seventh Amendment can be

dispensed with at will: It applies “only in judicial proceedings,” and not

whenever the government chooses to assign a matter to its own in-house

tribunals. Post, at 5. And under that logic, there is no apparent reason

why the government could not evade Article III’s jury-trial right just as

easily, simply by choosing to route criminal prosecutions through executive agencies. 
 

 

24 SEC v. JARKESY 

GORSUCH, J., concurring 

many other contexts where we seek to honor the Constitution’s demands—including, notably, when we seek to ascertain the scope of the criminal jury-trial right and the defendant’s attendant right to confront his accusers. See 

Erlinger, 602 U. S., at ___–___ (slip op., at 19–20); Crawford 

v. Washington, 541 U. S. 36, 50 (2004). What’s more, this 

approach has the virtue of “keep[ing] judges in their proper

lane” by “seeking to honor the supreme law the people have 

ordained rather than substituting our will for theirs.” 

Rahimi, 602 U. S., at ___–___ (GORSUCH, J., concurring)

(slip op., at 4–5); see Crawford, 541 U. S., at 67. 

It is hard, as well, to take seriously the dissent’s charges

of unworkability and unpredictability. At least until today,

the dissenters supported procedural protections for those in 

the government’s sights in civil as well as criminal cases.

What kind of protections? Often, they have argued, it depends on a judicial balancing test. One that is “flexible,” 

defies “technical conception,” lacks “fixed content,” and will

“not always yield the same result” even when applied in 

similar circumstances. Culley, 601 U. S., at 413 (opinion of 

SOTOMAYOR, J.) (internal quotation marks omitted). As we 

have seen, that was essentially the course some pursued, 

too, when it came to the public rights exception in the fallout from Atlas Roofing. See Part III–B, supra. But that 

kind of “‘we know it when we see it’” approach to constitutional rights, post, at 21, can hardly claim any serious advantages when it comes to workability or predictability. 

Failing all else, the dissent retreats to Atlas Roofing. At 

least that decision, it insists, supports its nearly boundless 

conception of public rights. The dissent goes so far as to 

accuse the Court of undermining “stare decisis and the rule 

of law,” post, at 15, and engaging in “a power grab,” post, at 

37, by failing to give Atlas Roofing its broadest possible construction. It’s a “disconcerting” accusation indeed, post, at 

36, and a misdirected one at that. Construed as broadly as 

the dissent proposes, Atlas Roofing’s view of public rights 
 

Cite as: 603 U. S. ____ (2024) 25 

GORSUCH, J., concurring 

stands as an outlier in our jurisprudence—with no apparent support in original meaning, at odds with prior precedent, and inconsistent with later precedent as well. See 

ante, at 25, n. 4; Part III–B, supra. Meanwhile, the Court’s 

alternative construction of Altas Roofing fits far more comfortably with all those legal sources. In that respect, the

majority’s approach is of a piece with Granfinanciera’s similar approach 25 years ago. And, more broadly, it is of a 

piece with our usual practice of construing “loose language”

found in a prior judicial opinion in a way that better conforms it to the mainstream of our precedents. Groff v. 

DeJoy, 600 U. S. 447, 474 (2023) (SOTOMAYOR, J., concurring). As the dissenters have previously acknowledged, 

that course is neither unusual nor at odds with stare decisis. 

See id., at 474–475; see also Brown v. Davenport, 596 U. S. 

118, 141 (2022) (“We neither expect nor hope that our successors will comb these pages for stray comments and

stretch them beyond their context—all to justify an outcome 

inconsistent with this Court’s reasoning and judgments”).

Were there any doubt about the propriety of the Court’s 

treatment of Atlas Roofing, consider one more feature of the 

alternative the dissent proposes. In defending the broadest 

possible construction of Atlas Roofing’s public rights discussion, the dissent necessarily endorses that decision’s exceptionally narrow conception of the Seventh Amendment. See 

post, at 6. After all, as public rights expand, so too the jurytrial right must contract. Yet Atlas Roofing’s discussion of 

the jury-trial right, no less than its discussion of public 

rights, is difficult to square with precedent and original 

meaning.

Recall that, from the start, the Seventh Amendment was 

understood to protect that right “not merely” in suits recognized at common law, but in “all suits which are” of legal, 

as opposed to “equity [or] admiralty[,] jurisdiction.” Parsons, 3 Pet., at 447 (emphasis added); see Part II–B, supra. 

This Court repeated that understanding of the Amendment 
 

 

26 SEC v. JARKESY 

GORSUCH, J., concurring 

until well into the 1970s, noting, for example, that “the applicability of the constitutional right to jury trial in actions

enforcing statutory rights” was “a matter too obvious to be 

doubted.” Curtis v. Loether, 415 U. S. 189, 193 (1974) (internal quotation marks omitted); accord, Pernell v. Southall 

Realty, 416 U. S. 363, 375 (1974) (the Seventh “Amendment 

requires trial by jury in actions unheard of at common 

law”). And the Court rejected the notion that a statute 

must present “a close equivalent” to a common-law cause of

action; the jury-trial right attached, we said, so long as the 

“action involve[d] rights and remedies of the sort traditionally enforced in an action at law.” Ibid.

 Atlas Roofing ignored all of that. Instead, it suggested, 

“[t]he phrase ‘Suits at common law’ has been construed to 

refer to cases tried prior to the adoption of the Seventh

Amendment in courts of law.” 430 U. S., at 449 (emphasis 

added). That cramped construction of the Seventh Amendment was, of course, a key move in Atlas Roofing. For without it, the Court would have been hard pressed to suggest 

the public rights doctrine permits Congress to route any

“‘new cause of action’” for adjudication before agencies

where juries do not sit. Post, at 14 (quoting Atlas Roofing, 

430 U. S., at 461).

Almost immediately, however, the Court rejected Atlas 

Roofing’s analysis, not just with respect to public rights doctrine but the Seventh Amendment, too. Returning to our

mainstream precedents, the Court reaffirmed the applicability of the Seventh Amendment to new causes of action, 

first in Tull v. United States, 481 U. S. 412 (1987), and then 

in Granfinanciera. See ante, at 8–9. And by 1990, our case 

law had come full circle, announcing once again what has 

always been true: that “[t]he right to a jury trial includes

more than the common-law forms of action recognized in

1791.” Teamsters v. Terry, 494 U. S. 558, 564. 

Today, the Court respects and follows this longstanding 
 

 

Cite as: 603 U. S. ____ (2024) 27 

GORSUCH, J., concurring 

message in our Seventh Amendment precedents. The dissent chooses another path entirely—adopting a reading of 

Atlas Roofing that leads not only to an implausibly broad 

construction of public rights, but to an implausibly narrow 

understanding of the jury-trial guarantee as well. One 

wholly at odds with precedents both old and new. Nor is 

the dissent shy about its real motivation—and it has nothing to do with respect for precedent but much more to do 

with a “power grab”: Holding the government to the Constitution’s promise of a jury trial, the dissent insists, would 

impose “constraints on what,” in its view, “modern-day 

adaptable governance must look like.” Post, at 37. All of 

which, at bottom, amounts to little more than a complaint 

with the Constitution’s revolutionary promise of popular 

oversight of government officials—and with those judges 

who would honor that promise. 

* 

People like Mr. Jarkesy may be unpopular. Perhaps even

rightly so: The acts he allegedly committed may warrant

serious sanctions. But that should not obscure what is at 

stake in his case or others like it. While incursions on old 

rights may begin in cases against the unpopular, they 

rarely end there. The authority the government seeks (and 

the dissent would award) in this case—to penalize citizens

without a jury, without an independent judge, and under 

procedures foreign to our courts—certainly contains no 

such limits. That is why the Constitution built “high walls

and clear distinctions” to safeguard individual liberty. 

Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 239 (1995).

Ones that ensure even the least popular among us has an

independent judge and a jury of his peers resolve his case 

under procedures designed to ensure a fair trial in a fair 

forum. In reaffirming all this today, the Court hardly 

leaves the SEC without ample powers and recourse. The 

agency is free to pursue all of its charges against Mr. 
 

28 SEC v. JARKESY 

GORSUCH, J., concurring 

Jarkesy. And it is free to pursue them exactly as it had

always done until 2010: In a court, before a judge, and with 

a jury. With these observations, I am pleased to concur. 
_________________ 

_________________ 

Cite as: 603 U. S. ____ (2024) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 22–859 

SECURITIES AND EXCHANGE COMMISSION, 

PETITIONER v. GEORGE R. JARKESY, JR., 

ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[June 27, 2024] 

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and 

JUSTICE JACKSON join, dissenting. 

Throughout our Nation’s history, Congress has authorized agency adjudicators to find violations of statutory obligations and award civil penalties to the Government as an

injured sovereign. The Constitution, this Court has said, 

does not require these civil-penalty claims belonging to the

Government to be tried before a jury in federal district 

court. Congress can instead assign them to an agency for

initial adjudication, subject to judicial review. This Court 

has blessed that practice repeatedly, declaring it “the ‘settled judicial construction’” all along; indeed, “‘from the beginning.’” Atlas Roofing Co. v. Occupational Safety and 

Health Review Comm’n, 430 U. S. 442, 460 (1977). Unsurprisingly, Congress has taken this Court’s word at face 

value. It has enacted more than 200 statutes authorizing 

dozens of agencies to impose civil penalties for violations of 

statutory obligations. Congress had no reason to anticipate 

the chaos today’s majority would unleash after all these 

years.

Today, for the very first time, this Court holds that Congress violated the Constitution by authorizing a federal 

agency to adjudicate a statutory right that inheres in the 
 

2 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

Government in its sovereign capacity, also known as a public right. According to the majority, the Constitution requires the Government to seek civil penalties for federalsecurities fraud before a jury in federal court. The nature 

of the remedy is, in the majority’s view, virtually dispositive. That is plainly wrong. This Court has held, without 

exception, that Congress has broad latitude to create statutory obligations that entitle the Government to civil penalties, and then to assign their enforcement outside the regular courts of law where there are no juries.

Beyond the majority’s legal errors, its ruling reveals a far

more fundamental problem: This Court’s repeated failure

to appreciate that its decisions can threaten the separation

of powers. Here, that threat comes from the Court’s mistaken conclusion that Congress cannot assign a certain

public-rights matter for initial adjudication to the Executive because it must come only to the Judiciary.

The majority today upends longstanding precedent and 

the established practice of its coequal partners in our tripartite system of Government. Because the Court fails to 

act as a neutral umpire when it rewrites established rules

in the manner it does today, I respectfully dissent. 

I 

The story of this case is straightforward. The Securities 

and Exchange Commission (SEC or Commission) investigated respondents George Jarkesy and his advisory firm 

Patriot28, LLC, for alleged violations of federal-securities

laws in connection with the launch of two hedge funds.

In deciding how and where to enforce these laws, the SEC 

could have filed suit in federal court or adjudicated the matter in an administrative enforcement action subject to judicial review. See 15 U. S. C. §§77h–1, 77t, 78u, 78u–2, 78u–

3, 80b–3, 80b–9. The SEC opted for the latter. In 2013, the 

SEC initiated an administrative enforcement action 

against respondents, alleging violations of the Securities 
 

Cite as: 603 U. S. ____ (2024) 3 

SOTOMAYOR, J., dissenting 

Act of 1933, the Securities Exchange Act of 1934, and the 

Investment Advisers Act of 1940. Specifically, the SEC alleged that respondents falsely told brokers and investors 

that: (1) a prominent accounting firm would audit the hedge

funds; (2) a prominent investment bank would serve as the

funds’ prime broker; and (3) one of the funds would invest 

50% of its capital in certain life-insurance policies. In reality, the audit never took place, the bank never opened a

prime brokerage account, and the hedge fund invested less

than 20% of its capital in the life-insurance policies. In addition to misrepresenting the funds’ investment strategies,

respondents allegedly overvalued the funds’ holdings to 

charge higher management fees.

The SEC assigned the action to one of its administrative

law judges, who held an evidentiary hearing and issued a 

lengthy initial decision, concluding that respondents in fact 

had violated the three securities laws. The full Commission 

reviewed the initial decision and reached the same determination. The Commission also denied respondents’ constitutional challenges to the order, including that the 

agency’s in-house adjudication violated respondents’ Seventh Amendment right to a jury trial in federal court. Ultimately, the SEC ordered respondents to pay a civil penalty of $300,000 and to cease and desist from violating the 

federal-securities laws. It also barred Jarkesy from doing 

certain things in the securities industry and ordered Patriot28 to disgorge $685,000 in illicit profits.

Respondents filed a petition for review in the Fifth Circuit. 34 F. 4th 446, 466 (2022). A divided panel granted the 

petition and vacated the SEC’s order. The panel held, over

the dissent of Judge Davis, that respondents were entitled 

to a jury trial in federal court under the Seventh Amendment because the federal-securities antifraud provisions

were similar to common-law fraud claims to which the jurytrial right would attach. See id., at 451–459. Because the 

SEC forced respondents to proceed within the agency, the 
 

4 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

Court of Appeals held that the SEC violated respondents’ 

Seventh Amendment rights and thus vacated the SEC’s order. Id., at 465–466.1 

The majority affirms the Fifth Circuit’s decision, notwithstanding the mountain of precedent against it. A faithful 

application of our precedent would have led, inexorably, to 

upholding the statutory scheme that Congress enacted for 

the SEC’s in-house adjudication of federal-securities 

claims. 

II 

The majority did not need to break any new ground to

resolve respondents’ Seventh Amendment challenge. This 

Court’s longstanding precedent and established government practice uniformly support the constitutionality of administrative schemes like the SEC’s: agency adjudications 

of statutory claims for civil penalties brought by the Government in its sovereign capacity. See Part II–B (infra, at 

7–14). In assessing the constitutionality of such adjudications, the political branches’ “‘[l]ong settled and established 

practice,’” which this Court has upheld and reaffirmed time

and again, is entitled to “‘great weight.’” Chiafalo v. Washington, 591 U. S. 578, 592–593 (2020) (quoting The Pocket 

Veto Case, 279 U. S. 655, 689 (1929)); accord, Vidal v. Elster, 602 U. S. 286, 323 (2024) (BARRETT, J., concurring in

part); id., at 330 (SOTOMAYOR, J., concurring in judgment); 

Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd., 601 U. S. 416, 442 

—————— 1As the majority notes, respondents also prevailed on two other constitutional challenges in the Court of Appeals. See ante, at 6. The divided panel concluded that: (1) the SEC’s discretion to bring the case 

within the agency instead of federal court violated the nondelegation doctrine; and (2) a for-cause restriction on the Administrative Law Judge’s 

removal violated Article II and the separation of powers. 34 F. 4th 446, 

459–465 (CA5 2022). I disagree with the ruling below on both points. 

Because the majority does not reach these issues, though, I address only 

the Seventh Amendment challenge discussed in the majority’s opinion. 
 

 

Cite as: 603 U. S. ____ (2024) 5 

SOTOMAYOR, J., dissenting 

(2024) (KAGAN, J., concurring). 

A 

There are two key constitutional provisions at issue here. 

One is the Seventh Amendment, which “preserve[s]” the 

“right of trial by jury” in “Suits at common law, where the 

value in controversy shall exceed twenty dollars.” The 

other is Article III’s Vesting Clause, which provides that the 

“judicial Power of the United States . . . shall be vested” in 

federal Article III courts. This case presents the familiar 

interplay between these two provisions.

Although this case involves a Seventh Amendment challenge, the principal question at issue is one rooted in Article

III and the separation of powers. That is because, as the 

majority rightly acknowledges, the Seventh Amendment’s

jury-trial right “applies” only in “an Article III court.” Ante, 

at 7. That conclusion follows from both the text of the Constitution and this Court’s precedents.

As to the text, the Amendment is limited to “Suits at common law.” That means two things. First, that the right 

applies only in judicial proceedings. The term “suit,” after 

all, refers to “the prosecution of some demand in a Court of 

justice,” Cohens v. Virginia, 6 Wheat. 264, 407 (1821) (Marshall, C. J.), or a “proceeding in a court of justice,” Weston 

v. City Council of Charleston, 2 Pet. 449, 464 (1829) (same) 

(“The modes of proceeding may be various, but if a right is 

litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit”).

Consistent with that understanding, this Court has held repeatedly that “the Seventh Amendment is not applicable to 

administrative proceedings.” Tull v. United States, 481 

U. S. 412, 418, n. 4 (1987); accord, Atlas Roofing, 430 U. S., 

at 454–455; Curtis v. Loether, 415 U. S. 189, 195 (1974).

Factfinding by a jury is “incompatible with the whole concept of administrative adjudication,” which empowers executive officials to find the relevant facts and apply the law to 
 

 

6 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

those facts like juries do in a courtroom. Pernell v. Southall 

Realty, 416 U. S. 363, 383 (1974) (collecting cases).

Second, the requirement that the “‘[s]uit’” must be one

“‘at common law’” means that the claim at issue must be 

“‘legal in nature.’” Ante, at 8. So, whether a defendant is 

entitled to a jury under the Seventh Amendment depends

on both the forum and the cause of action. If the claim is in 

an Article III proceeding, then the right to a jury attaches 

if the claim is “legal in nature” and the amount in controversy exceeds $20. Granfinanciera, S. A. v. Nordberg, 492 

U. S. 33, 53 (1989); Atlas Roofing, 430 U. S., at 454, n. 12, 

461, n. 16. Yet when, as here, the claim proceeds in a nonArticle III forum, the relevant question becomes whether

“Congress properly assign[ed the] matter” for decision to 

that forum consistent with Article III and the separation of 

powers. Oil States Energy Services, LLC v. Greene’s Energy 

Group, LLC, 584 U. S. 325, 345 (2018). In other words, the 

question is whether Congress improperly bestowed federal 

judicial power on a non-Article III forum. See id., at 334 

(Congress cannot “‘confer the Government’s “judicial 

Power” on entities outside Article III’” (quoting Stern v. 

Marshall, 564 U. S. 462, 484 (2011))).2 

The conclusion that Congress properly assigned a matter 

to an agency for adjudication therefore necessarily “resolves 

[any] Seventh Amendment challenge.” Oil States, 584 

U. S., at 345 (explaining that if non-Article III adjudication 

—————— 2Since the founding, Executive Branch officials have adjudicated certain matters, while others have required resolution in an Article III 

court. An executive official properly vested with the authority to find 

facts, apply the law to those facts, and impose the consequences prescribed by law exercises executive power under Article II, not judicial 

power under Article III. See Arlington v. FCC, 569 U. S. 290, 305, n. 4 

(2013) (explaining that agency rulemaking and adjudications may “take

‘legislative’ and ‘judicial’ forms, but they are exercises of—indeed, under 

our constitutional structure they must be exercises of—the ‘executive 

Power’ ” (quoting Art. II, §1, cl. 1)). 
Cite as: 603 U. S. ____ (2024) 7 

SOTOMAYOR, J., dissenting 

is permissible, then “‘the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder’” (quoting Granfinanciera, 492 U. S., at 53– 

54)); see W. Baude, Adjudication Outside Article III, 133

Harv. L. Rev. 1511, 1571 (2020) (“The Article III analysis

should be conducted first, on its own. And then . . . if the 

non-Article III adjudication is permissible, the Seventh 

Amendment should be ignored”). When executive power is

at stake, Congress does not violate Article III or the Seventh Amendment by authorizing a nonjury factfinder to adjudicate the dispute.

So, the critical issue in this type of case is whether Congress can assign a particular matter to a non-Article III

factfinder. 

B 

For more than a century and a half, this Court has answered that Article III question by pointing to the distinction between “private rights” and “public rights.” See Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 

272, 284 (1856) (recognizing public-rights exception). The 

distinction is helpful because public rights always can be

assigned outside of Article III. They “‘do not require judicial determination’” under the Constitution, even if they 

“‘are susceptible of it.’” Crowell v. Benson, 285 U. S. 22, 50 

(1932) (quoting Ex parte Bakelite Corp., 279 U. S. 438, 451 

(1929)).

The majority says that aspects of the public-rights doctrine have been confusing. See ante, at 17. That might be

true for cases involving wholly private disputes, but not for 

cases where the Government is a party.3 It has long been 

—————— 3Every case that has expressed consternation about the precise contours of the public-rights doctrine, including those cited by the majority,

involve only private disputes—or, more precisely, “disputes to which the

Federal Government is not a party in its sovereign capacity.” Granfi-
 

 

 

 

8 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

settled and undisputed that, at a minimum, a matter of 

public rights arises “between the government and persons

subject to its authority in connection with the performance 

of the constitutional functions of the executive or legislative 

departments.” Crowell, 285 U. S., at 50; Oil States, 584 

U. S., at 335 (describing the “Court’s longstanding formulation of the public-rights doctrine”); accord, Granfinanciera, 

492 U. S., at 51, and n. 8; Atlas Roofing, 430 U. S., at 452, 

457; Ex parte Bakelite Corp., 279 U. S., at 451. Indeed, 

“from the time the doctrine of public rights was born, in 

1856,” everyone understood that public rights “‘arise “between the government and others,”’” and refer to “rights of 

the public—that is, rights pertaining to claims brought by

or against the United States.” Granfinanciera, 492 U. S., 

at 68–69 (Scalia, J., concurring in part and concurring in

judgment); see ibid. (collecting sources). So, while this 

Court has recognized public rights in certain disputes between private parties, see infra, at 19–20, the doctrine’s 

heartland consists of claims belonging to the Government.

When a claim belongs to the Government as sovereign,

the Constitution permits Congress to enact new statutory

obligations, prescribe consequences for the breach of those

obligations, and then empower federal agencies to adjudicate such violations and impose the appropriate penalty. 

See Atlas Roofing, 430 U. S., at 450–455 (collecting cases).4 

—————— 

nanciera, S. A. v. Nordberg, 492 U. S. 33, 55, n. 10 (1989) (involving dispute between private parties in bankruptcy court); see ante, at 17 (citing 

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. 

325, 332–334 (2018) (involving patent dispute between private parties

before the U. S. Patent and Trademark Office); Thomas v. Union Carbide 

Agricultural Products Co., 473 U. S. 568, 575 (1985) (involving challenge 

to arbitration procedure for private parties disputing data compensation

under federal pesticide registration program)); see also Stern v. Marshall, 564 U. S. 462, 469–470 (2011) (involving dispute between private

parties in bankruptcy court); Northern Pipeline Constr. Co. v. Marathon 

Pipe Line Co., 458 U. S. 50, 56–57 (1982) (plurality opinion) (same). 4 Judicial review of these agency decisions allows Congress to avoid 
 

Cite as: 603 U. S. ____ (2024) 9 

SOTOMAYOR, J., dissenting 

This Court has repeatedly emphasized these unifying principles through an unbroken series of cases over almost 200 

years. 

1 

Start at the beginning, with Murray’s Lessee in 1856. In 

that case, the Government issued a warrant to compel a

federal customs collector to produce public funds that the

Government determined the collector had unlawfully withheld. See 18 How., at 274–275. The Government executed 

the warrant to seize and sell a plot of the collector’s land to

make up for the withheld funds. See id., at 274. In upholding the sale of the seized property, this Court concluded 

that the Government’s in-house assessment and collection 

of taxes and penalties based on a federal official’s adjudication of the facts did not violate Article III. The scheme was 

—————— 

any due process concerns that might arise from having executive officials 

deprive someone of their property without review in an Article III court.

See Atlas Roofing Co. v. Occupational Safety and Health Review 

Comm’n, 430 U. S. 442, 455, n. 13 (1977) (“[T]hese cases do not present 

the question whether Congress may commit the adjudication of public

rights and the imposition of fines for their violation to an administrative

agency without any sort of intervention by a court at any stage of the 

proceedings”); accord, Oil States, 584 U. S., at 344 (same); Tr. of Oral 

Arg. 29 (Principal Deputy Solicitor General) (stating that “the Court has 

emphasized that judicial review of agency action may well be required”

and the Due Process Clause may “ha[ve] something to say” about that 

requirement). The concurrence reproaches this dissent for declining to

address any potential deficiencies in this administrative scheme, as well

as failing to specify which forms of judicial review may be constitutionally required, see ante, at 22 (opinion of GORSUCH, J.), even though respondents did not raise any due process challenge in this case. Deciding 

whether this statutory scheme is procedurally deficient and so circumscribes judicial review that it violates due process would be inconsistent 

with the “settled principles of party presentation and adversarial testing.” Vidal v. Elster, 602 U. S. 286, 328 (2024) (SOTOMAYOR, J., concurring in judgment) (citing Maslenjak v. United States, 582 U. S. 335, 354 

(2017) (GORSUCH, J., joined by THOMAS, J., concurring in part and concurring in judgment)). 
 

10 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

constitutional, the Court said, because “public rights” were

at issue. Id., at 284. In other words, the dispute arose between the Government and the customs collector in connection with the Government’s exercise of its constitutional 

power to collect revenue. Congress could have brought such

claims, if it wanted, “within the cognizance of the courts of 

the United States, as it may deem proper.” Ibid. The Court 

thus endorsed that constitutional balance: Congress could 

decide whether to assign a public-rights dispute to the Executive for initial adjudication subject to judicial review or

to an Article III federal court for resolution. 

Fast forward half a century. In Oceanic Steam Nav. Co. 

v. Stranahan, 214 U. S. 320, 338–340 (1909), the Court upheld a customs official’s imposition of a penalty on a steamship company that violated immigration laws barring the 

entry of certain classes of people into the country. The customs official determined the facts, adjudicated the violation, and enforced the statutory prohibition on immigration 

through the assessment of a monetary penalty. See id., at 

329. The Court noted the breadth of Congress’s immigration power and held that the civil-penalty statutory scheme 

at issue was “beyond all question constitutional.” Id., at 

342. Yet, far from restricting the public-rights doctrine to

this particular exercise of congressional power or to specific

prerogatives, the Stranahan Court went out of its way to 

explain that the “settled judicial construction” that civilpenalty claims brought by the Government could be assigned to the Executive for initial adjudication extended 

“not only as to tariff, but as to internal revenue, taxation,

and other subjects,” including the regulation of foreign commerce. Id., at 339; see also id., at 334–335. 

Importantly, Stranahan rejected the “proposition” that,

in “cases of penalty or punishment, . . . enforcement must 

depend upon the exertion of judicial power, either by civil 

or criminal process.” Id., at 338. In words that could have 
 

Cite as: 603 U. S. ____ (2024) 11 

SOTOMAYOR, J., dissenting 

been written in response to today’s ruling, the Court explained that such a “proposition magnifies the judicial to

the detriment of all other departments of the Government,

disregards many previous adjudications of this court, and 

ignores practices often manifested and hitherto deemed to 

be free from any possible constitutional question.” Ibid. 

For that reason, the validity of legislation authorizing the 

non-Article III adjudication of civil-penalty claims does not

turn on the Judiciary’s assessment of whether it is necessary for executive officials “to enforce designated penalties 

without resort to the courts.” Id., at 339. Whether or not 

such legislation violates Article III depends on whether 

Congress acted pursuant to a “grant of power made by the

Constitution,” and not on whether it “relate[s] to subjects

peculiarly within the authority of the legislative department of the Government” or on the circumstances that 

might have “caused Congress to exert a specified power.” 

Id., at 339–340. 

By the time Stranahan was decided, Congress already

routinely “impose[d] appropriate obligations and sanction[ed] their enforcement by reasonable money penalties, 

giving to executive officers the power to enforce such penalties without the necessity of invoking the judicial power.” 

Id., at 339. Far from limiting the public-rights doctrine to 

the particular context in Stranahan and prior cases, this

Court has expressly rejected the notion that the publicrights doctrine is so confined. See infra, at 18–19. This 

Court has repeatedly approved Congress’s assignment of

public rights to agencies in diverse areas of the law, reflecting Congress’s varied constitutional powers.5 A nonexhaustive list includes “interstate and foreign commerce, taxation, immigration, the public lands, public health, the 

—————— 5The majority’s fixation on this dissent’s discussion of Stranahan, see 

ante, at 16, n. 1, misses the fact that Stranahan exists within a long line

of cases recognizing the diverse areas of the law comprising the publicrights doctrine. 
 

12 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

facilities of the post office, pensions, and payments to veterans,” Crowell, 285 U. S., at 51, and n. 13 (collecting

cases); see also, e.g., Helvering v. Mitchell, 303 U. S. 391, 

401–404 (1938) (administrative penalty for underpayment 

of taxes); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 

1, 22–24, 48–49 (1937) (reinstatement of dismissed employee and backpay in adjudication of unfair-labor-practices claim under the National Labor Relations Act); Phillips v. Commissioner, 283 U. S. 589, 591–592 (1931) 

(deficiency assessments for unpaid taxes); Lloyd Sabaudo 

Societa Anonima per Azioni v. Elting, 287 U. S. 329, 334– 

335 (1932) (fines for violation of immigration law barring

entry of certain classes of individuals); Ex parte Bakelite 

Corp., 279 U. S., at 446–447, 451, 458 (adjudication of unfair-methods-of-competition and unfair-acts claims, and imposition of additional duties under customs law); Passavant 

v. United States, 148 U. S. 214, 215–216, 220 (1893) (penalty for undervaluation of imported merchandise).

The list could go on and on. That is because, in every case

where the Government has acted in its sovereign capacity

to enforce a new statutory obligation through the administrative imposition of civil penalties or fines, this Court, 

without exception, has sustained the statutory scheme authorizing that enforcement outside of Article III. 

2 

A unanimous Court made this exact point nearly half a 

century ago in Atlas Roofing. That was the last time this 

Court considered a public-rights case where the constitutionality of an in-house adjudication of statutory claims

brought by the Government was at issue. That case presented the same question as this one: Whether the Seventh 

Amendment permits Congress to commit the adjudication

of a new cause of action for civil penalties to an administrative agency. 430 U. S., at 444. The Court said it did. 
Cite as: 603 U. S. ____ (2024) 13 

SOTOMAYOR, J., dissenting

 In Atlas Roofing, the Court explained how Congress identified a national problem, concluded that existing legal remedies were inadequate to address it, and then created a new

statutory scheme that endorsed Executive in-house enforcement as a solution. Specifically, Congress found “that

work-related deaths and injuries had become a ‘drastic’ national problem,” and that existing causes of action, including tort actions for negligence and wrongful death, did not 

adequately “protect the employee population from death

and injury due to unsafe working conditions.” Id., at 444– 

445. In response, Congress enacted the Occupational 

Safety and Health Act of 1970 (OSHA) to require employers

“to avoid maintaining unsafe or unhealthy working conditions.” Id., at 445. OSHA in turn “empower[ed] the Secretary of Labor to promulgate health and safety standards,” 

and the Occupational Safety and Health Review Commission to impose civil penalties on employers maintaining unsafe working conditions, regardless of whether any worker

was in fact injured or killed. Id., at 445–446. 

Two employers that had been assessed civil penalties for 

OSHA violations resulting in the death of employees challenged the constitutionality of the statute’s enforcement 

procedures. They observed that “a suit in a federal court by

the Government for civil penalties for violation of a statute

is a suit for a money judgment[,] which is classically a suit

at common law.” Id., at 449. Therefore, the employers 

claimed, the Seventh Amendment right to a jury attached 

and Congress could not assign the matter to an agency for

resolution. See ibid. 

This Court upheld OSHA’s statutory scheme. It relied on 

the long history of public-rights cases endorsing Congress’s

now-settled practice of assigning the Government’s rights

to civil penalties for violations of a statutory obligation to

in-house adjudication in the first instance. See id., at 450– 

455. In light of this “history and our cases,” the Court con-
 

 

14 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

cluded that, where Congress “create[s] a new cause of action, and remedies therefor, unknown to the common law,” 

it is free to “plac[e] their enforcement in a tribunal supplying speedy and expert resolutions of the issues involved.” 

Id., at 460–461. “That is the case even if the Seventh 

Amendment would have required a jury where the adjudication of those rights is assigned to a federal court of law.” 

Id., at 455; see id., at 461, n. 16. 

The “new rule” and “legally unsound principle” that the

majority accuses this dissent of “unfurl[ing]” today, ante, at 

17–18, n. 2, is the one that this Court declared “‘settled judicial construction’ . . . ‘from the beginning’”: “[T]he Government could commit the enforcement of statutes and the 

imposition and collection of fines . . . for administrative enforcement, without judicial trials,” even if the same action 

would have required a jury trial if committed to an Article

III court. Atlas Roofing, 430 U. S., at 460 (collecting cases); 

accord, Elting, 287 U. S., at 334 (Congress “may lawfully 

impose appropriate obligations, sanction their enforcement 

by reasonable money penalties, and invest in administrative officials the power to impose and enforce them”); 

Stranahan, 214 U. S., at 339 (Congress may “impose appropriate obligations and sanction their enforcement by reasonable money penalties, giving to executive officers the 

power to enforce such penalties without the necessity of invoking the judicial power”). 

C 

It should be obvious by now how this case should have 

been resolved under a faithful and straightforward application of Atlas Roofing and a long line of this Court’s precedents. The constitutional question is indistinguishable.

The majority instead wishes away Atlas Roofing by burying 

it at the end of its opinion and minimizing the unbroken 

line of cases on which Atlas Roofing relied. That approach 
Cite as: 603 U. S. ____ (2024) 15 

SOTOMAYOR, J., dissenting 

to precedent significantly undermines this Court’s commitment to stare decisis and the rule of law. 

This case may involve a different statute from Atlas Roofing, but the schemes are remarkably similar. Here, just as 

in Atlas Roofing, Congress identified a problem; concluded 

that the existing remedies were inadequate; and enacted a

new regulatory scheme as a solution. The problem was a 

lack of transparency and accountability in the securities 

market that contributed to the Great Depression of the 

1930s. See ante, at 1. The inadequate remedies were the 

then-existing state statutory and common-law fraud causes

of action. The solution was a comprehensive federal scheme 

of securities regulation consisting of the Securities Act of 

1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940. See ibid. In particular, Congress enacted these securities laws to ensure “full disclosure” and promote ethical business practices “in the

securities industry,” SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 186 (1963), as well as to “protect 

investors against manipulation of stock prices,” Ernst & 

Ernst v. Hochfelder, 425 U. S. 185, 195 (1976).

The prophylactic nature of the statutory regime also is

virtually indistinguishable from the OSHA scheme at issue

in Atlas Roofing. Among other things, these securities laws

prohibit the misrepresentation or concealment of various

material facts through the imposition of federal registration

and disclosure requirements. See ante, at 2. Critically, federal-securities laws do not require proof of actual reliance 

on an investor’s misrepresentations or that an “investor has

actually suffered financial loss.” Ante, at 4; see also SEC v. 

Life Partners Holdings, Inc. 854 F. 3d 765, 779 (CA5 2017); 

SEC v. Blavin, 760 F. 2d 706, 711 (CA6 1985) (per curiam).

OSHA too prohibits conduct that could, but does not necessarily, injure a private person. Atlas Roofing, 430 U. S., at 

445 (OSHA remedies “exis[t] whether or not an employee is 
 

16 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

actually injured or killed as a result of the [unsafe or unhealthy working] condition”). The employer’s failure to

maintain safe and healthy working conditions violates

OSHA even if there is no actionable harm to an employee,

just as a misrepresentation to investors in connection with 

the buying or selling of securities violates federal-securities

law even if there is no actual injury to the investors. 

Moreover, both here and in Atlas Roofing, Congress empowered the Government to institute administrative enforcement proceedings to adjudicate potential violations of 

federal law and impose civil penalties on a private party for

those violations, all while making the final agency decision 

subject to judicial review. In bringing a securities claim, 

the SEC seeks redress for a “violation” that “is committed 

against the United States rather than an aggrieved individual,” which “is why, for example, a securities-enforcement

action may proceed even if victims do not support or are not 

parties to the prosecution.” Kokesh v. SEC, 581 U. S. 455, 

463 (2017). Put differently, the SEC seeks to “‘remedy

harm to the public at large’” for violation of the Government’s rights. Ibid. The Government likewise seeks to 

remedy a public harm when it enforces OSHA’s prohibition 

of unsafe working conditions.

Ultimately, both cases arise between the Government

and others in connection with the performance of the Government’s constitutional functions, and involve the Government acting in its sovereign capacity to bring a statutory 

claim on behalf of the United States in order to vindicate 

the public interest. They both involve, as Atlas Roofing put

it, “new cause[s] of action, and remedies therefor, unknown 

to the common law.” 430 U. S., at 461. Neither Article III 

nor the Seventh Amendment prohibits Congress from assigning the enforcement of these new “Governmen[t] rights 

to civil penalties” to non-Article III adjudicators, and thus 

“supplying speedy and expert resolutions of the issues involved.” Id., at 450, 461. In a world where precedent means 
 

Cite as: 603 U. S. ____ (2024) 17 

SOTOMAYOR, J., dissenting 

something, this should end the case. Yet here it does not. 

III 

The practice of assigning the Government’s right to civil

penalties for statutory violations to non-Article III adjudication had been so settled that it become an undisputable 

reality of how “our Government has actually worked.” Consumer Financial Protection Bureau, 601 U. S., at 445 

(KAGAN, J., concurring). That is why the Court has had no 

cause to address this kind of constitutional challenge since 

its unanimous decision in Atlas Roofing. The majority

takes a wrecking ball to this settled law and stable government practice. To do so, it misreads this Court’s precedents, 

ignores those that do not suit its thesis, and advances distinctions created from whole cloth. 

The majority’s treatment of the public-rights doctrine is

not only incomplete, but is gerrymandered to produce today’s result. See Part III–A (infra, at 17–21). Unable to 

explain that doctrine, the majority effectively ignores the

Article III threshold question to focus instead on two Seventh Amendment cases: Tull v. United States, 481 U. S. 412 

(1987), and Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 

(1989). Neither involved the in-house adjudication of statutory claims brought by the Government pursuant to its 

sovereign powers, which is the critical fact under this 

Court’s precedent. See Part III–B–1 (infra, at 22–24) (discussing Tull); Part III–B–2 (infra, at 24–29) (discussing 

Granfinanciera). The majority and the concurrence then 

predictably fail to distinguish Atlas Roofing, which resolved 

the Seventh Amendment question for cases like this one implicating that critical fact. See Part III–C (infra, at 29–32). 

A 

To start, it is almost impossible to discern how the majority defines a public right and whether its view of the doctrine is consistent with this Court’s public-rights cases. The 
 

18 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

majority at times seems to limit the public-rights exception 

to areas of its own choosing. It points out, for example, that 

some public-rights cases involved the collection of revenue, 

customs law, and immigration law, see ante, at 14–17, and 

that Atlas Roofing involved OSHA and not “civil penalty 

suits for fraud,” ante, at 22.6 Other times, the majority 

highlights a particular practice predating the founding,

such as the “unbroken tradition” in Murray’s Lessee of executive officials issuing warrants of distress to collect revenue. Ante, at 15; see also ante, at 13–14 (GORSUCH, J., concurring). Needless to say, none of these explanations for

the doctrine is satisfactory. What is the legal principle behind saying only these areas and no further? This Court 

has rejected that kind of arbitrary line-drawing in cases

like Stranahan and Atlas Roofing. How does the requirement of a historical practice dating back to the founding, or 

“flow[ing] from centuries-old rules,” ante, at 17, account for 

the broad universe of public-rights cases in the United

States Reporter? The majority does not say. 

The majority’s only other theory fares no better. The majority seems to suggest that a common thread underlying

these cases is that “the political branches had traditionally 

held exclusive power over th[ese] field[s] and had exercised 

it.” Ante, at 16–17. To the extent the majority thinks this

is a distinction, it fails for at least two reasons.

 First, Atlas Roofing expressly rejected the argument that

the public-rights doctrine is limited to particular exercises

of congressional power. The employers in Atlas Roofing argued “that cases such as Murray’s Lessee, Elting, [Stranahan], Phillips, and Helvering all deal with the exercise of 

sovereign powers that are inherently in the exclusive do-

—————— 6The majority also cites cases involving “relations with Indian tribes, 

the administration of public lands, and the granting of public benefits

such as payments to veterans, pensions, and patent rights.” Ante, at 17 

(citations omitted). 
Cite as: 603 U. S. ____ (2024) 19 

SOTOMAYOR, J., dissenting 

main of the Federal Government and critical to its very existence—the power over immigration, the importation of 

goods, and taxation.” 430 U. S., at 456. Cabining the cases

in that way, the employers argued that “[t]he theory of

those cases is inapplicable where the Government exercises 

other powers that [they] regard[ed] as less fundamental,

less exclusive, and less vital to the existence of the Nation, 

such as the power to regulate commerce among the several

States, the latter being the power Congress sought to exercise in enacting [OSHA].” Ibid. The Court rejected the employers’ argument, explaining that nothing in those cases 

turned on those particular exercises of the Government’s 

authority. See id., at 456–457; cf. Crowell, 285 U. S., at 51 

(offering a list of “[f]amiliar illustrations of . . . exercise[s]”

of Congress’s constitutional authority that have fallen 

within the public-rights exception to Article III).

Second, even if Atlas Roofing had not explicitly rejected 

the proposed distinction here, the majority cannot reconcile 

its restrictive view of the public-rights doctrine with Atlas 

Roofing and other precedents. For example, it is unclear

how OSHA, or the National Labor Relations Act at issue in 

Jones & Laughlin, would fit the majority’s view of the public-rights doctrine, or why the exercise of interstate-commerce power to enact those statutes would be any different

from the exercise of that same power to enact the federalsecurities laws at issue here. See Atlas Roofing, 430 U. S., 

at 457 (“It is also apparent that Jones & Laughlin, Pernell, 

and Curtis are not amenable to the limitations suggested 

by [the employers]”).

The majority’s description of the doctrine also fails to account for public rights that do not belong to the Federal 

Government in its sovereign capacity. See Granfinanciera, 

492 U. S., at 54 (“[T]he Federal Government need not be a 

party for a case to revolve around ‘public rights’”). This 

Court, after all, has rejected the confinement of public 

rights to that heartland. See ibid. (“[W]e [have] rejected the 
 

 

 

20 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

view that ‘a matter of public rights must at a minimum

arise “between the government and others”’”). Conspicuously absent from the majority’s discussion are, for example, cases in which this Court held that Congress could assign a private federally created action that was “closely

integrated into a public regulatory scheme” for adjudication

in a non-Article III forum. Thomas v. Union Carbide Agricultural Products Co., 473 U. S. 568, 594 (1985). These 

cases include, for example, an agency’s adjudication of 

state-law counterclaims to an investor’s federal action 

against its broker, Commodity Futures Trading Comm’n v. 

Schor, 478 U. S. 833, 835–836, 847–850 (1986), and the arbitration of data-compensation disputes among participants in the Environmental Protection Agency’s pesticide

registration scheme, Thomas, 473 U. S., at 571, 589–592. 

Both Thomas and Schor thus upheld the non-Article III adjudication of disputes between private parties, which naturally did not involve the Government in its sovereign capacity.

Even accepting the majority’s public-rights-are-confusing 

defense, its “strategy for dealing with the confusion is not

to offer a theory for rationalizing this body of law,” but to

provide an incomplete and unprincipled account of the doctrine. Haaland v. Brackeen, 599 U. S. 255, 279 (2023). The 

majority references, but does not explain, “distinctions our

cases have drawn,” ante, at 18, n. 2, also cherry-picking

some cases and ignoring others. Indeed, in lieu of a coherent theory, all the majority has to offer is a list of five “historic categories of adjudications [that] fall within the exception,” ante, at 14–17, and maybe (just maybe) OSHA, which

the majority reluctantly adds to the mix at the end of its

opinion for good measure, see ante, at 22–24. The majority

ignores countless public-rights cases and entire strands of 

the doctrine, and fails to heed its own admonition that 

“close attention” must be paid “to the basis for each asserted 
Cite as: 603 U. S. ____ (2024) 21 

SOTOMAYOR, J., dissenting 

application of the doctrine.” Ante, at 17.7 

The majority also attacks a strawman when it asserts

that “precedents foreclose th[e] argument” that the publicrights doctrine “applies whenever a statute increases governmental efficiency.” Ante, at 26; see also ante, at 19 

(GORSUCH, J., concurring). No one has made that argument

in this case; not the Government and certainly not this dissent. The fact that certain rights might be susceptible to 

speedy and expert resolution through non-Article III adjudication is not what makes them “rights of the public—that 

is, rights pertaining to claims brought by or against the 

United States.” Granfinanciera, 492 U. S., at 68–69 

(Scalia, J., concurring in part and concurring in judgment).

It is not clear what else, if anything, might qualify as a

public right, or what is even left of the doctrine after today’s

opinion. Rather than recognize the long-settled principle

that a statutory right belonging to the Government in its

sovereign capacity falls within the public-rights exception 

to Article III, the majority opts for a “we know it when we 

see it” formulation. This Court’s precedents and our coequal branches of Government deserve better. 

B 

Rather than relying on Atlas Roofing or the relevant public-rights cases, the majority instead purports to follow Tull 

and Granfinanciera. The former involved a suit in federal 

court and the latter involved a dispute between private parties. So, just like that, the majority ventures off on the

wrong path. Indeed, as explained below, both the majority 

and the concurrence miss the critical distinction drawn in 

—————— 7Among other things, the concurrence accuses this dissent of behaving 

like a “picky child at the dinner table.” Ante, at 21 (opinion of GORSUCH, 

J.). The precedents, though, speak for themselves. It is the majority and 

concurrence that pick and choose among public-rights cases, excluding 

broad strands of precedent constituting the doctrine. 
 

22 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

this Court’s precedents between the non-Article III adjudication of public-rights matters involving the liability of one

individual to another and those involving claims belonging 

to the Government in its sovereign capacity.

According to the majority, respondents are entitled to a

jury trial in federal court because, as here, Tull involved a 

Government claim for civil penalties, and Granfinanciera 

looked to the common law to determine if a statutory cause

of action was legal in nature. By focusing on the remedy in 

this case, and the perceived similarities between the statutory cause of action and a common-law analogue, the majority elides the critical distinction between those cases and

this one: Whether Congress assigned the Government’s sovereign rights to civil penalties to a non-Article III factfinder 

for adjudication. 

1 

The majority bafflingly proclaims that “the remedy is all

but dispositive” in this case, ante, at 9, ignoring that Atlas 

Roofing and countless precedents before it rejected that 

proposition. Not content to take just a page from the employers’ challenge in Atlas Roofing, the majority has taken

their whole brief, resuscitating yet another theory that this

Court has long foreclosed. The employers in Atlas Roofing

argued that the Seventh Amendment prohibited Congress

from assigning to an agency the same remedy at issue here: 

civil penalties. See 430 U. S., at 450 (“Petitioners . . . claim 

that . . . assign[ing] the function of adjudicating the Government’s rights to civil penalties for [a statutory] violation 

. . . deprive[s] a defendant of his Seventh Amendment jury

right”). This Court rejected that argument outright, citing

a long line of cases involving the Executive’s adjudication of 

statutory claims for civil penalties brought by the Government in its sovereign capacity. Id., at 450–455 (collecting 

cases). 
 

Cite as: 603 U. S. ____ (2024) 23 

SOTOMAYOR, J., dissenting 

As discussed above, this Court has long endorsed statutory schemes authorizing agency adjudicators to find violations and award civil penalties to the Government. See supra, at 9–12. Long before Atlas Roofing, this Court held 

that the Constitution permits Congress to enact statutory

obligations and then “sanction their enforcement by reasonable money penalties” by government officials “without the

necessity of invoking the judicial power.” Stranahan, 214 

U. S., at 339; see id., at 338–339 (collecting cases). That the 

SEC imposed civil penalties on respondents therefore has 

little, if any, bearing on the resolution of this case.

Again, even if over a century of precedent did not foreclose the majority’s argument, it fails on its own terms. The 

majority relies almost entirely on Tull, which held that 

statutory claims for civil penalties were “a type of remedy

at common law” that entitled a defendant to a jury trial. 

481 U. S., at 422; see id., at 425. Critically, however, the 

Tull Court’s analysis took place in an entirely different context: federal court. See ante, at 8–9 (“In [Tull], the Government sued a real estate developer for civil penalties [under 

the Clean Water Act] in federal court” (emphasis added)). 

Tull did not present the question at issue in Atlas Roofing

and other cases involving non-Article III adjudication of 

Government claims in the first instance. Rather, Tull 

stands for the unremarkable proposition that, when the 

Government sues an entity for civil penalties in federal district court, the Seventh Amendment entitles the defendant 

“to a jury trial to determine his liability on the legal claims.”

481 U. S., at 425. 

That conclusion says nothing about the constitutionality 

of the SEC’s in-house adjudicative scheme. Atlas Roofing

and its predecessors could not have been clearer on this

point: Congress can assign the enforcement of a statutory

obligation for in-house adjudication to executive officials,

“even if the Seventh Amendment would have required a

jury where the adjudication of those rights is assigned to a 
 

 

 

24 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

federal court of law instead of an administrative agency.”

430 U. S., at 455. Although “the Government could commit

the enforcement of statutes and the imposition and collection of fines to the judiciary, in which event jury trial would

be required,” the Government “could also validly opt for administrative enforcement, without judicial trials.” Id., at 

460 (citing Stranahan, 214 U. S., at 339; Hepner v. United 

States, 213 U. S. 103 (1909); United States v. Regan, 232 

U. S. 37 (1914); Helvering, 303 U. S., at 402–403; Crowell, 

285 U. S., at 50–51); Curtis, 415 U. S., at 195 (explaining 

that Congress can “entrust [the] enforcement of statutory 

rights to an administrative process . . . free from the strictures of the Seventh Amendment,” but must abide by the 

Amendment when it does so “in an ordinary civil action in

the district courts”).

It would have been quite remarkable for Tull, which involved a claim in federal court, to overrule silently more

than a century of caselaw involving non-Article III adjudications of the Government’s rights to civil penalties for statutory violations. Of course, Tull did no such thing. Tull 

even reaffirmed Atlas Roofing by emphasizing that the Seventh Amendment depends on the forum, not just the remedy, because it “is not applicable to administrative proceedings.” 481 U. S., at 418, n. 4 (citing Atlas Roofing, 430 U. S., 

at 454; Pernell, 416 U. S., at 383). For the majority to pretend otherwise is wishful thinking at best. 

2 

The majority next argues that the “close relationship” between the federal-securities laws and common-law fraud 

“confirms that this action is ‘legal in nature,’” and entitles 

respondents to a jury trial. Ante, at 13. That argument

does not fare any better than the argument on remedy.

Again, the majority bends inapposite case law to an illogical 

thesis. Granfinanciera, on which the majority relies to 

make its cause-of-action argument, set forth the public-
 

 

Cite as: 603 U. S. ____ (2024) 25 

SOTOMAYOR, J., dissenting 

rights analysis only for “disputes to which the Federal Government is not a party in its sovereign capacity.” 492 U. S., 

at 55, n. 10. For cases that, as here, involve the Government in its sovereign capacity, the Granfinanciera Court 

plainly stated that “Congress may fashion causes of action 

that are closely analogous to common-law claims and [still]

place them beyond the ambit of the Seventh Amendment by 

assigning their resolution to a [non-Article III] forum in

which jury trials are unavailable.” Id., at 52 (citing Atlas 

Roofing, 430 U. S., at 450–461).8 

The Court held in Granfinanciera that “a person who has

not submitted a claim against a bankruptcy estate has a

right to a jury trial when sued by the trustee in bankruptcy 

to recover an allegedly fraudulent monetary transfer.” 492 

U. S., at 36. In doing so, the Court noted that actions to 

recover such transfers through a claim of fraudulent conveyance were traditionally available at common law. See 

—————— 8The majority leaves open the possibility that Granfinanciera might 

have overruled Atlas Roofing. See ante, at 22–23. That suggestion 

strains credulity. By my count, Granfinanciera favorably cites to Atlas 

Roofing at least 12 times. See 492 U. S., at 48, 51–54, 57, 60–61; see also 

id., at 65 (Scalia, J., concurring in part and concurring in judgment). It 

even reaffirmed the definition of public rights from Atlas Roofing, declaring that the Court “adhere[d] to that general teaching . . . in Atlas Roofing.” 492 U. S., at 51. The majority’s only response is to say that Justice 

White thought Granfinanciera may have overruled Atlas Roofing. See 

ante, at 23, n. 3; see also ante, at 17 (GORSUCH, J., concurring). That is 

misleading at best. When Justice White said in his Granfinanciera dissent that the Court’s opinion in that case could be read as overruling or

limiting portions of several cases, including Atlas Roofing, he was referring to his understanding that Atlas Roofing also extended to private 

disputes. See Granfinanciera, 492 U. S., at 79–83; see also Tr. of Oral 

Arg. 58–59 (Principal Deputy Solicitor General explaining that Justice 

White understood “Atlas Roofing to speak [also] to the private parties 

cases,” not just to cases involving the Government, which “is really a 

through line that the Court has never questioned”). With respect to

claims involving the Government, such as those at issue here, Granfinanciera expressly reaffirmed Atlas Roofing and “adhere[d] to [its] general teaching.” 492 U. S., at 51. 
 

26 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

id., at 43–49. That did not resolve the case, however. Unlike in Tull, the proceeding at issue in Granfinanciera was 

in a non-Article III forum (i.e., a bankruptcy court). So, to 

answer whether Congress could assign the fraudulent-conveyance claim to a bankruptcy judge for decision, Congress 

needed to decide whether the “legal cause of action involve[d] ‘public rights.’” 492 U. S., at 53. 

Granfinanciera explains that there are two ways to identify a “public right.” First, there are the matters in which 

Congress enacts a statutory cause of action that “inheres in, 

or lies against, the Federal Government in its sovereign capacity.” Id., at 53 (citing Atlas Roofing, 430 U. S., at 458).

These matters necessarily arise between the Government 

and the people in connection with the Government’s exercise of its constitutional authority. See supra, at 7–8. In 

these cases, the Court said, Atlas Roofing controls the public-rights analysis. See Granfinanciera, 492 U. S., at 51, 53. 

The Court explained that “Congress may effectively supplant a common law cause of action carrying with it a right 

to a jury trial with a statutory cause of action shorn of a 

jury trial right if that statutory cause of action inheres in, 

or lies against, the Federal Government in its sovereign capacity.” Id., at 53 (citing Atlas Roofing, 430 U. S., at 458).

The second kind of public right that Granfinanciera recognized involves “disputes to which the Federal Government is not a party in its sovereign capacity,” 492 U. S., at 

55, n. 10, that is, usually “[w]holly private” disputes, id., at 

51. The public-rights analysis in these private-dispute 

cases looks different: “The crucial question, in cases not involving the Federal Government, is whether ‘Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, has created a seemingly

“private” right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.’” Id., at 54 (quoting Thomas, 473 U. S., at 593–594; 
 

Cite as: 603 U. S. ____ (2024) 27 

SOTOMAYOR, J., dissenting 

emphasis added; alterations omitted).

These two approaches together stand for the proposition

that “[i]f a statutory right is not closely intertwined with a

federal regulatory program Congress has power to enact, 

and if that right neither belongs to nor exists against the 

Federal Government, then it must be adjudicated by an Article III court.” 492 U. S., at 54–55 (emphasis added). Once 

in federal court, “[i]f the right is legal in nature, then it carries with it the Seventh Amendment’s guarantee of a jury 

trial.” Id., at 55. 

Because Granfinanciera did not involve a statutory right 

that belonged to the Government in its sovereign capacity, 

Atlas Roofing did not control the outcome. Instead, the 

Court applied the private-disputes test to determine 

whether fraudulent-conveyance “actions were ‘closely intertwined’ with the bankruptcy regime.” Ante, at 20 (quoting 

Granfinanciera, 492 U. S., at 54). The Court held that the 

fraudulent-conveyance actions “were not inseparable from

the bankruptcy process,” and thus the public-rights exception did not apply. Ante, at 20 (citing Granfinanciera, 492 

U. S., at 54, 56).

The majority brushes aside this critical distinction between Atlas Roofing and Granfinanciera in one sentence. 

That “the Government is the party prosecuting this action,”

the majority writes, is meaningless because this Court has

“never held that the ‘presence of the United States as a 

proper party to the proceeding is . . . sufficient’ by itself to

trigger the exception.” Ante, at 22 (quoting Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 69, 

n. 23 (1982) (plurality opinion)). Here, too, the majority attacks a strawman. The SEC does not claim that the mere 

presence of the United States as a proper party necessarily 

means that a public right is at issue. See Reply Brief 8, n. 2 

(disclaiming this argument).9 Of course “what matters is 

—————— 9 Indeed, “the public-rights doctrine does not extend to any criminal 
 

 

 

28 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

the substance” of the claim. Ante, at 21. 

By no means, though, does this case involve a “purely taxonomic change.” Granfinanciera, 492 U. S., at 61. Congress did not just repackage a common-law claim under a 

new label. It created new statutory obligations and an entire federal scheme. See supra, at 14–16.10 Perhaps most

importantly, Congress created a new right unknown to the 

common law that, unlike common-law fraud, belongs to the 

public and inheres in the Government in its sovereign capacity. That is why, when the SEC seeks to enforce the federal-securities laws, it does so to remedy the harm to the

United States. See supra, at 16. It seeks to protect the integrity of the securities market as a whole through the imposition of new and distinct remedies like civil penalties 

—————— 

matters, although the Government is a proper party.” Northern Pipeline 

Constr. Co., 458 U. S., at 70, n. 24 (plurality opinion) (citing United 

States ex rel. Toth v. Quarles, 350 U. S. 11 (1955)). That is so not only

because this Court has held as much, but also because Article III itself 

prescribes that “[t]he trial of all Crimes, except in Cases of Impeachment,

shall be by Jury.” §2, cl. 3. In other words, Article III requires criminal 

trials to take place before a jury in federal court, but says nothing about

civil-penalty claims brought by the Government. Beyond criminal trials,

the Solicitor General also concedes that, under this Court’s precedents,

the public-rights doctrine does not apply when the Government brings a 

common-law claim in a proprietary capacity. See Reply Brief 8, n. 2. 10The majority spills much ink on the perceived similarities between 

federal-securities fraud and common-law fraud, only to conclude that the

causes of action are not identical. That conclusion was inevitable because of critical differences between the two. Even if Congress drew upon 

common-law fraud when it enacted federal-securities laws, see ante, at 

11–12, this Court has repeatedly disclaimed any suggestion that Congress federalized a common-law fraud claim. See, e.g., Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 162 (2008)

(“Section 10(b) does not incorporate common-law fraud into federal law”); 

SEC v. Zandford, 535 U. S. 813, 820 (2002) (“[T]he statute must not be

construed so broadly as to convert every common-law fraud that happens

to involve securities into a violation of §10(b)”); Herman & MacLean v. 

Huddleston, 459 U. S. 375, 388–389 (1983) (“[T]he antifraud provisions

of the securities laws are not coextensive with common-law doctrines of 

fraud”). 
Cite as: 603 U. S. ____ (2024) 29 

SOTOMAYOR, J., dissenting 

and orders barring violators from holding certain positions

and performing certain activities in the industry. See 15 

U. S. C. §§77h–1(f ), and (g), 78u–2, 78u–3(f ). 

For these reasons, “[a]n action brought by an Executive 

Branch agency to enforce federal securities laws is not the 

same as an action brought by one individual against another for monetary or injunctive relief of the sort that law 

courts (with juries) in England or the States have traditionally heard.” Brief for Professor John Golden et al. as Amici 

Curiae 3. Congress did not unlawfully “siphon” a traditional legal action “away from an Article III court” when it

enacted the federal-securities laws and provided for their 

enforcement within the SEC. Ante, at 21. 

The majority asserts that “Granfinanciera effectively decides this case.” Ante, at 20. That can only be true, though,

if one ignores what Granfinanciera actually says: Its publicrights analysis of whether an action is closely intertwined 

with a federal regulatory program only applies “in cases not

involving the Federal Government.” 492 U. S., at 54. The 

analysis from Atlas Roofing controls where, as here, “‘the 

Government is involved in its sovereign capacity under an 

otherwise valid statute.’” 492 U. S., at 51 (quoting Atlas 

Roofing, 430 U. S., at 458). 

C 

Both cases relied on by the majority, Tull and Granfinanciera, reaffirm that Atlas Roofing controls precisely in circumstances like the ones at issue in this case. That is why 

the majority’s late-stage attempt to distinguish Atlas Roofing fails. The majority’s principal argument that the OSHA

scheme in Atlas Roofing “did not borrow its cause of action 

from the common law” and was instead a “self-consciously

novel” scheme that “resembled a detailed building code,” 

ante, at 23–24, is flawed on multiple fronts. 

First, OSHA’s cause of action should be largely irrelevant

under the majority’s view that the remedy of civil penalties 
 

30 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

is effectively dispositive under Tull. Atlas Roofing, and 

many other cases involving non-Article III adjudications,

also involved civil penalties designed to punish and deter, 

and yet the majority does not expressly disavow them. Logically, then, either Atlas Roofing and countless other cases 

were wrongly decided, or the majority’s view on civil penalties is wrong.

Second, because the majority elides the critical distinction between Atlas Roofing and Granfinanciera, it fails to 

grapple with the fact that this case, like Atlas Roofing and 

unlike Granfinanciera, involves the Government acting in 

its sovereign capacity to enforce a statutory violation. That 

makes the right at issue a “public right” that Congress can

take outside the purview of Article III, even when the new 

cause of action is analogous to a common-law claim. 

Third, the relationship between the federal-securities

laws (including their antifraud provisions) and commonlaw fraud is materially indistinguishable from the relationship between OSHA and the common-law torts of wrongful

death and negligence. Unlike their common-law comparators, neither statute requires actionable harm to an individual. See supra, at 15. In arguing that OSHA’s scheme was 

“self-consciously” novel in ways unknown to the common

law, the majority points to the granularity of OSHA standards. Ante, at 23–24. Yet lawyers and regulated parties in 

the securities industry would be surprised to hear that this

could be a distinguishing feature. Anyone familiar with the

industry knows securities laws are replete with specific and

exceedingly detailed requirements implementing the statute’s disclosure and antifraud provisions. See, e.g., 17 CFR 

§275.206(4)–1(b) (2023) (prohibiting testimonials and endorsements that do not satisfy requirements without meeting complex disclosure requirements); §275.206(4)–2(a) 

(prohibiting investment advisers from having custody of client funds or securities unless specific requirements are 
 

 

Cite as: 603 U. S. ____ (2024) 31 

SOTOMAYOR, J., dissenting 

met, including qualifications, notices, and account statements).

The majority further rests on the notion that Congress 

drew inspiration from the common law in enacting the antifraud provisions of the federal-securities laws, whereas

OSHA’s new statutory duty did not bring any common-law 

soil with it. See ante, at 23–24. Yet both statutes share 

elements with claims at common law that Congress deemed 

inadequate to address the national problems that prompted

it to legislate. See supra, at 14–15. Still, even accepting

that federal-securities laws bring common-law soil with

them and OSHA does not, the majority does not explain 

why that is a constitutionally relevant distinction.11 

In sum, all avenues by which the majority attempts to

distinguish Atlas Roofing fail. The majority cannot escape

the entrenched principle that a “legal cause of action involves ‘public rights’” that can be taken outside of Article 

III if the “statutory right is . . . closely intertwined with a

federal regulatory program Congress has power to enact” or 

if it “belongs to [o]r exists against the Federal Government.” 

Granfinanciera, 492 U. S., at 53–54.12 In both Atlas Roofing and this case, a public right exists. In both statutory 

—————— 11 In Tull v. United States, 481 U. S. 412 (1987), for example, there was 

no common-law soil brought into that federal regulatory regime, and the 

Seventh Amendment still applied. Indeed, no one can argue that “[t]he 

purpose of [the Clean Water Act] was . . . to enable the Federal Government to bring or adjudicate claims that traced their ancestry to the common law.” Ante, at 23–24. 12The concurrence’s assertion that the majority is “follow[ing] the advice of Justices Brennan and Marshall” by “‘limit[ing] the judicial authority of non-Article III federal tribunals’ ” is misleading. Ante, at 20 

(quoting Schor, 478 U. S., at 859 (Brennan, J., joined by Marshall, J., 

dissenting)). Justice Brennan in his Schor dissent wrote that he would 

limit the authority of non-Article III tribunals to three recognized exceptions: (1) territorial courts; (2) courts-martial; and (3) forums adjudicating public-rights matters. As examples of the public-rights category, Justice Brennan cited Murray’s Lessee, Ex parte Bakelite, Crowell, Thomas, 

and his plurality opinion in Northern Pipeline. See Schor, 478 U. S., at 
 

32 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

schemes, regardless of any perceived resemblance to the 

common law, Congress enacted a new cause of action that 

created a statutory right belonging to the United States for 

the Government to enforce pursuant to its sovereign powers. 

IV 

A faithful and straightforward application of this Court’s

longstanding precedent should have resolved this case. 

Faithful “[a]dherence to precedent is ‘a foundation stone of 

the rule of law.’” Kisor v. Wilkie, 588 U. S. 558, 586 (2019) 

(quoting Michigan v. Bay Mills Indian Community, 572 

U. S. 782, 798 (2014)). It allows courts to function, and be 

perceived, as courts, and not as political entities. “‘It promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity 

of the judicial process.’” 588 U. S., at 586–587 (quoting 

Payne v. Tennessee, 501 U. S. 808, 827 (1991); alterations 

omitted). That is why, “even in constitutional cases, a departure from precedent ‘demands special justification.’” 

Gamble v. United States, 587 U. S. 678, 691 (2019) (quoting 

Arizona v. Rumsey, 467 U. S. 203, 212 (1984)).

Today’s decision disregards these foundational principles.13 Time will tell what is left of the public-rights doc-

—————— 

859. As those citations demonstrate, both Justices Brennan and Marshall certainly thought that public-rights matters extend to certain private disputes that do not involve the Government as a party, as well as 

disputes involving the Government in connection with different exercises 

of congressional power. Indeed, it was Justice Brennan who reaffirmed 

Atlas Roofing in his opinion for the Granfinanciera Court and explained 

that a public right includes, at a minimum, a statutory right that “belongs to [o]r exists against the Federal Government.” 492 U. S., at 53– 

54. 13Precedents should not be so easily discarded based on the views of 
 

Cite as: 603 U. S. ____ (2024) 33 

SOTOMAYOR, J., dissenting 

trine. Less uncertain, however, are the momentous consequences that flow from the majority’s insistence that the 

Government’s rights to civil penalties must now be tried before a jury in federal court. The majority’s decision, which 

strikes down the SEC’s in-house adjudication of civil-penalty claims on the ground that such claims are legal in nature and entitle respondents to a federal jury, effects a seismic shift in this Court’s jurisprudence. Indeed, “[i]f you’ve

never heard of a statute being struck down on that ground,”

and you recall having read countless cases approving of 

that arrangement, “you’re not alone.” Seila Law LLC v. 

Consumer Financial Protection Bureau, 591 U. S. 197, 294 

(2020) (KAGAN, J., concurring in judgment with respect to

severability and dissenting in part). 

The majority pulls a rug out from under Congress without even acknowledging that its decision upends over two 

centuries of settled Government practice. The United 

States, led by then-Solicitor General Robert Bork and thenAssistant Attorney General for the Civil Division Rex Lee,

told this Court in Atlas Roofing that “during the whole of

our history, regulatory fines and penalties have been collected by non-jury procedures pursuant to . . . legislative decisions,” and that “[i]t would be most remarkable if, at this 

late date, the Seventh Amendment were construed to outlaw this consistent rule of government followed for two centuries.” Brief for Respondents in Atlas Roofing, O. T. 1976, 

No. 75–746, etc., pp. 81–82. This Court agreed and upheld 

that practice, it seemed, once and for all. 

—————— 

some commentators, or on whether or not a particular case is “celebrated.” Ante, at 25, n. 4. Atlas Roofing and the long line of cases before

it are precedents from this Court entitled to stare decisis effect. Indeed, 

this Court has reaffirmed and repeatedly cited Atlas Roofing with approval. See, e.g., Oil States, 584 U. S., at 344–345; Stern, 564 U. S., at 

489–490; Granfinanciera, 492 U. S., at 48, 51–54, 60–61; id., at 65–66 

(Scalia, J., concurring in part and concurring in judgment); Tull, 481 

U. S., at 418, n. 4; Northern Pipeline Constr. Co., 458 U. S., at 67, n. 18, 

69, n. 23, 70, 73, 77 (plurality opinion). 
 

34 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

Following this Court’s precedents and the recommendation of the Administrative Conference of the United States, 

Congress has enacted countless new statutes in the past 50

years that have empowered federal agencies to impose civil

penalties for statutory violations. See 2 P. Verkuilm, D. 

Gifford, C. Koch, R. Pierce, & J. Lubbers, Administrative 

Conference of the United States, Recommendations and Reports, The Federal Administrative Judiciary 861, and nn. 

350–351 (1992). These statutes are sometimes enacted in 

addition to, but often instead of, “the traditional civil enforcement statutes that permitted agencies to collect civil 

penalties only after federal district court trials.” Id., at 861. 

“By 1986, there were over 200 such statutes” and “[t]he

trend has, if anything, accelerated” since then. Id., at 861, 

and n. 351. 

Similarly, there are, at the very least, more than two

dozen agencies that can impose civil penalties in administrative proceedings. See Tr. of Oral Arg. 78–79 (Principal

Deputy Solicitor General) (recognizing two dozen agencies 

with administrative civil-penalty authorities); see also, e.g., 

5 U. S. C. §1215(a)(3)(A)(ii) (Merit Systems Protection 

Board); 7 U. S. C. §§9(10)(C), 13a (Commodity Futures 

Trading Commission); §§499c(a), 586, 2279e(a) (Department of Agriculture); 8 U. S. C. §§1324c, 1324d (Department of Justice); 12 U. S. C. §§5563(a)(2), (c), (Consumer Financial Protection Bureau); 16 U. S. C. §823b(c) (Federal 

Energy Regulatory Commission); 20 U. S. C. §1082(g) (Department of Education); 21 U. S. C. §335b (Department of 

Health and Human Services/Food and Drug Administration); 29 U. S. C. §666(j) (Occupational Safety and Health 

Review Commission); 30 U. S. C. §§820(a) and (b) (Federal

Mine Safety and Health Review Commission); 31 U. S. C. 

§5321(a)(2) (Department of the Treasury); 33 U. S. C. 

§§1319(d) and (g) (Environmental Protection Agency); 39

U. S. C. §3018(c) (Postal Service); 42 U. S. C. §3545(f ) (Department of Housing and Urban Development); 46 U. S. C. 
Cite as: 603 U. S. ____ (2024) 35 

SOTOMAYOR, J., dissenting 

§41107(a) (Federal Maritime Commission); 47 U. S. C. 

§503(b)(3) (Federal Communications Commission); 49 

U. S. C. §521 (Federal Railroad Administration); §46301 

(Department of Transportation). 

Some agencies, like the Consumer Financial Protection

Bureau, the Environmental Protection Agency, and the 

SEC, can pursue civil penalties in both administrative proceedings and federal court. See, e.g., 12 U. S. C. §§5563(a),

5564(a), 5565(a)(1), (2)(H), and (c) (Consumer Financial

Protection Bureau); 33 U. S. C. §§1319(a), (b), and (g) (Environmental Protection Agency); supra, at 2 (SEC). Others 

do not have that choice. As the above-cited statutes confirm, 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. For 

those and countless other agencies, all the majority can say 

is tough luck; get a new statute from Congress.

Against this backdrop, our coequal 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. Unfortunately, that mistaken

view means that the constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be 

stripped of their power to enforce laws enacted by Congress. 

Rather than acknowledge the earthshattering nature of its 

holding, the majority has tried to disguise it. The majority 

claims that its ruling is limited to “civil penalty suits for

fraud” pursuant to a statute that is “barely over a decade

old,” ante, at 18, n. 2, 22, an assurance that is in significant 

tension with other parts of its reasoning. That incredible 

assertion should fool no one. Today’s decision is a massive 

sea change. Litigants seeking further dismantling of the

“administrative state” have reason to rejoice in their win 
 

36 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

today, but those of us who cherish the rule of law have nothing to celebrate. 

* * * 

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. See, e.g., Collins v. Yellen, 594 U. S. 220, 227 (2021)

(concluding that the Federal Housing Finance Agency’s

“structure violates the separation of powers” because the 

Agency was led by a single Director removable by the President only “‘for cause’”); United States v. Arthrex, Inc., 594 

U. S. 1, 6, 23 (2021) (holding that “authority wielded by [Administrative Patent Judges] during inter partes review is

incompatible with their appointment by the Secretary to an 

inferior office”); Seila Law, 591 U. S., at 202–205 (holding

that “the structure of the [Consumer Financial Protection

Bureau] violates the separation of powers” because it was

led by a single Director removable by the President only “for

cause”); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 483–484, 492 (2010) (holding “that the dual for-cause limitations on the removal of 

[Public Company Accounting Oversight] Board members

contravene the Constitution’s separation of powers”). The 

Court tells Congress how best to structure agencies, vindicate harms to the public at large, and even provide for the 

enforcement of rights created for the Government. It does 

all of this despite the fact that, compared to its political

counterparts, “the Judiciary possesses an inferior understanding of the realities of administration” and how “political power . . . operates.” Free Enterprise Fund, 561 U. S., at 

523 (Breyer, J., dissenting).

There are good reasons for Congress to set up a scheme

like the SEC’s. It may yield important benefits over jury

trials in federal court, such as greater efficiency and expertise, transparency and reasoned decisionmaking, as well as 
Cite as: 603 U. S. ____ (2024) 37 

SOTOMAYOR, J., dissenting 

uniformity, predictability, and greater political accountability. See, e.g., Brief for Administrative Law Scholars as 

Amici Curiae 30–32. Others may believe those benefits are

overstated, and that a federal jury is a better check on government overreach. See, e.g., Brief for Cato Institute as 

Amicus Curiae 11–25. Those arguments take place against 

the backdrop of a philosophical (and perhaps ideological) 

debate on whether the number of agencies and authorities

properly corresponds to the ever-increasing and evolving 

problems faced by our society.

This Court’s job is not to decide who wins this debate. 

These are policy considerations for Congress in exercising 

its legislative judgment and constitutional authority to decide how to tackle today’s problems. It is the electorate, and 

the Executive to some degree, not this Court, that can and 

should provide a check on the wisdom of those judgments. 

Make no mistake: Today’s decision is a power grab. Once 

again, “the majority arrogates Congress’s policymaking role 

to itself.” Garland v. Cargill, 602 U. S. 406, 442 (2024) 

(SOTOMAYOR, J., dissenting). It prescribes artificial constraints on what modern-day adaptable governance must 

look like. In telling Congress that it cannot entrust certain

public-rights matters to the Executive because it must 

bring them first into the Judiciary’s province, the majority

oversteps its role and encroaches on Congress’s constitutional authority. Its decision 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. The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. 

Madison). Judicial aggrandizement is as pernicious to the

separation of powers as any aggrandizing action from either

of the political branches.

Deeply entrenched in today’s ruling is the erroneous belief that any “mistaken or wrongful exertion by the legislative department of its authority” can lead to “grave abuses” 
 

 

 

38 SEC v. JARKESY 

SOTOMAYOR, J., dissenting 

and “it behooves the judiciary to apply a corrective by exceeding its own authority” through requiring civil-penalty 

claims to proceed before a federal jury. Stranahan, 214 

U. S., at 340. As this Court said over a century ago in this

public-rights context, that belief “mistakenly assumes that 

the courts can alone be safely intrusted with power, and

that hence it is their duty to unlawfully exercise prerogatives which they have no right to exert, upon the assumption that wrong must be done to prevent wrong being accomplished.” Ibid. 

By giving respondents a jury trial, even one that the Constitution does not require, the majority may think that it is 

protecting liberty. That belief, too, is deeply misguided.

The American People should not mistake judicial hubris

with the protection of individual rights. Our first President 

understood this well. In his parting words to the Nation,

he reminded us that a branch of Government arrogating for

itself the power of another based on perceptions of what, “in

one instance, may be the instrument of good . . . is the customary weapon by which free governments are destroyed.”

Farewell Address (1796), in 35 The Writings of George

Washington 229 (J. Fitzpatrick ed. 1940) (footnote omitted). 

The majority today ignores that wisdom. 

Because the Court disregards its own precedent and its 

coequal partners in our tripartite system of Government, I

respectfully dissent.