On the last day in June, as it left town, the Supreme Court granted certiorari in SEC v. Jarkesy, 34 Fd.4th 446 (5th Cir. 2022). In Jarkesy, a divided panel found that the SEC’s in-house adjudication before an administrative law judge of a fraud case against the defendants violated the latter’s right to a jury trial under the Seventh Amendment.

Not only was the decision 2-1, but the subsequent vote on an en banc rehearing failed by only a 10-6 vote (and possibly some in the majority just assumed that the case would inevitably go to the Supreme Court and should not be delayed). Although the Fifth Circuit also found the SEC’s actions unconstitutional on two other grounds, I will skip these other theories for now because I think they are less likely to interest the Supreme Court.

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