SEC v. Jarkesy

P R E L I M I N A R Y P R I N T
Volume 603 U. S. Part 1
Pages 109–203
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 27, 2024
REBECCA A. WOMELDORF
reporter of decisions
Page Proof Pending Publication
N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users 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.

Page Proof Pending Publication
OCTOBER
TERM, 2023
109
Syllabus
SECURITIES AND EXCHANGE COMMISSION v.
J
ARKESY et al.
certiorari to the united states court of appeals for
the fth 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 statutes 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 securi-
ties, 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 fle suit in federal court, or it can adjudicate the matter
itself. The forum the SEC selects dictates certain aspects of the litiga-
tion. In federal court, a jury fnds the facts, an Article III judge pre-
sides, and the Federal Rules of Evidence and the ordinary rules of dis-
covery govern the litigation. But when the SEC adjudicates the matter
in-house, there are no juries. The Commission presides while its Divi-
sion of Enforcement prosecutes the case. The Commission or its de-
legee—typically an administrative law judge—also fnds 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 Dodd-
Frank Wall Street Reform and Consumer Protection Act. The Act au-
thorized the SEC to impose such penalties through its own in-house
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 frm, 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 fnal
order determined that Jarkesy and Patriot28 had committed securities
violations and levied a civil penalty of $300,000. Jarkesy and Patriot28

Page Proof Pending Publication
110 SEC
v. JARKESY
Syllabus
petitioned for judicial review. The Fifth Circuit vacated the order on
the
ground that adjudicating the matter in-house violated the defend-
ants' Seventh Amendment right to a jury trial.
Held: When the SEC seeks civil penalties against a defendant for securi-
ties fraud, the Seventh Amendment entitles the defendant to a jury
trial. Pp. 120–141.
(a) The questi on presented by th is 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 Gran fnanciera, 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. Pp. 120–121.
(b) The Court frst explains why this action implicates the Seventh
Amendment. Pp. 121–126.
(1) The right to trial by jury is “of such importance and occupies
so frm a place in our history and jurisprudence that any seeming cur-
tailment 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 Ameri-
cans protested and eventually cited the British practice as a justifcation
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 ratifcation debates. The Fed-
eralist No. 83, p. 495. To fx that faw, 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. 121–122.
(2) The Seventh Amendment guarantees that in “[s]uits at common
law . . . the right of trial by jury shall be preserved.” The right itself
is not limited to the “common-law forms of action recognized” when the
Seventh Amendment was ratifed. 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 as-
sume.” Parsons, 3 Pet., at 447. That includes statutory claims that
are “legal in nature.” Gran fnanciera, 492 U. S., at 53.

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
111
Syllabus
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 wrong-
doer 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, deter-
rence, 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 enti-
tled to a jury on these claims.
The close relationship between federal securities fraud and common
law fraud confrms 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 princi-
ples when interpreting federal securities law. See, e. g., Dura Pharma-
ceuticals, Inc. v. Broudo, 544 U. S. 336, 343–344. While federal securi-
ties fraud and common law fraud are not identical, the close relationship
between the two confrms that this action is “legal in nature.” Granf-
nanciera, 492 U. S., at 53. Pp. 122–126.
(c) Because the claims at issue here implicate the Seventh Amend-
ment, a jury trial is required unless the “public rights” exception ap-
plies. Under this exception, Congress may assign the matter for
decisi on to an agency w ithout a jury, consistent with the Seventh
Amendment. For the reasons below, the exception does not apply.
Pp. 127–140.
(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
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

Page Proof Pending Publication
112 SEC
v. JARKESY
Syllabus
nature of an action at common law, then the matter presumptively con-
cer
ns private rights, and adjudication by an Article III court is manda-
tory. 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 quota-
tion marks omitted). No involvement by an Article III court in the
initial adjudication of public rights claims is necessary. Certain catego-
ries 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 pub-
lic lands; and the granting of public benefts. The Court's opinions gov-
erning 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 Art. III courts.”
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50,
69, n. 23 (plurality opinion). Pp. 127–132.
(2) In Gran fnanciera, 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 excep-
tion. To determine whether the claim implicated the Seventh Amend-
ment, 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 “quintessen-
tially suits at common law.” Gran fnanciera, 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 pub-
lic rights exception did not apply, and a jury was required. Id., at 54,
56. Pp. 132–134.
(3) Gran fnanciera 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
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.” Gran fnanciera, 492 U. S., at 56.
P. 134.

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
113
Syllabus
(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. Gran fnanciera 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 administra-
tive tribunal.” 492 U. S., at 52. The SEC's argument that Gran fnan-
ciera 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. 135–136.
(5) The Court's opinion in Atlas Roofng 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 Safety and Health
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 Roofng 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 Roofng
therefore does not apply here, where the statutory claim is “ `in the
nature of ' ” a common law suit. Ibid. Later rulings also foreclose
reading Atlas Roofng as the SEC does. This Court clarifed 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 Gran fnanciera, 492 U. S.,
at 52. Pp. 136–140.
(d) The Court does not reach the remaining issues in this case.
Pp. 140–141.
34 F. 4th 446, affrmed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Thomas,
Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Gorsuch, J.,
fled a concurring opinion, in which Thomas, J., joined, post, p. 141. Soto-
mayor, J., fled a dissenting opinion, in which Kagan and Jackson, JJ.,
joined, post, p. 167.
Principal Deputy Solicitor General Fletcher argued the
cause for petitioner. On the briefs were Solicitor General

114 SEC
v. JARKESY
Counsel
Prelogar, Principal Deputy Assistant Attorney General
Bo
ynton, Deputy Solicitor General Stewart, Vivek Suri, Ni-
cole Frazer Reaves, Mark B. Stern, Joshua M. Salzman,
Daniel Aguilar, Megan Barbero, Michael A. Conley, and
Dominick V. Freda.
S. Michael McColloch argued the cause for respondents.
With him on the brief was Karen L. Cook.*
*Briefs of amici curiae urging reversal were fled for Administrative
Law Scholars by Alan B. Morrison, Richard J. Pierce, Jr., and Ronald
M. Levin; for the Association of Administrative Law Judges by Hyland
Hunt, Ruthanne M. Deutsch, and Alexandra Mansbach; for the National
Treasury Employees Union by Julie M. Wilson, Paras N. Shah, and Alli-
son C. Giles; for the North American Securities Administrators Associa-
tion, Inc., by Vincente L. Martinez; for Public Citizen by Allison M. Zieve
and Nicolas A. Sansone; and for John M. Golden et al. by Thomas H. Lee,
pro se.
Briefs of amici curiae urging affrmance were fled for the State of West
Virginia et al. by Patrick Morrisey, Attorney General of West Virginia,
Lindsay S. See, Solicitor General, Michael R. Williams, Principal Deputy
Solicitor General, and Spencer J. Davenport, Assistant Solicitor General,
and by the Attorneys General for their respective States as follows: Steve
Marshall of Alabama, Treg Taylor of Alaska, Tim Griffn of Arkansas,
Ashley Moody of Florida, Chris Carr of Georgia, Raúl Labrador of Idaho,
Brenna Bird of Iowa, Jeff Landry of Louisiana, Lynn Fitch of Mississippi,
Andrew Bailey of Missouri, Austin Knudsen of Montana, Michael T. Hil-
gers of Nebraska, Alan Wilson of South Carolina, Jonathan Skrmetti of
Tennessee, Ken Paxton of Texas, Sean D. Reyes of Utah, and Bridget Hill
of Wyoming; for the American Bankers Association et al. by Manuel G.
Berrelez, David Baris, and Thomas Pinder; for the Americans for Pros-
perity Foundation by Michael Pepson; for the Atlantic Legal Foundation
by Lawrence S. Ebner; for the Cato Institute by Anastasia P. Boden and
Thomas A. Berry; for the Chamber of Commerce of the United States of
America et al. by Steven A. Engel, Michael H. McGinley, Elizabeth Gau-
dio Milito, Patrick J. Moran, and Jennifer B. Dickey; for the Competitive
Enterprise Institute by Devin Watkins and Dan Greenberg; for CTIA—
The Wireless Association et al. by Thomas M. Johnson, Jr., and Jeremy
J. Broggi; for Energy Transfer LP by William S. Scherman; for the In-
dependent Women's Law Center by Ka thr yn E. Tarber t and Gene C.
Schaerr; for the Institute for Justice et al. by Robert E. Johnson, Robert
Belden, Jared McClain, and Paul Avelar; for the Liberty Justice Center
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
115
Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
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, Con-
gress passed a suite of laws designed to combat securities
fraud and increase market transparency. Three such stat-
utes are relevant here: The Securities Act of 1933, the Secu-
by Lo ren A. Seehase; for Morr is & D ickson Co., LLC, by Hash im
M. Mooppan and Jeffrey R. Johnson; for the Pioneer Public Interest Law
Center by Ashley C. Parrish, Frank J. Bailey, and I. Cason Hewgley IV;
for TotalEnergies Gas & Power North America, Inc., by Jeremy C. Mar-
well, William S. Scherman, and Matthew X. Etchemendy; for the Wash-
ington Legal Foundation by John M. Masslon II and Cory L. Andrews;
for Phillip Goldstein et al. by Nicolas Morgan, Alex Spiro, Derek L. Shaf-
fer, and William A. Burck; for David Julian by Matthew T. Martens and
Timothy Perla; for Edwin Meese III et al. by Daniel R. Benson and Amit
R. Vora; and for Anthony Michael Sabino, pro se.
Briefs of amici curiae were fled for Advancing American Freedom
et al. by J. Marc Wheat; for the America First Policy Institute by Richard
Polk Lawson and Jessica Hart Steinmann; for the American Bar Associa-
tion by Deborah Enix-Ross, Mary-Christine Sungaila, and Kirsten M.
Castañeda; for the Claremont Institute's Center for Constitutional Juris-
prudence by John C. Eastman and Anthony T. Caso; for the Federal Ad-
ministrative Law Judges Conference by Ronald W. Chapman II; for the
Forum of United States Administrative Law Judges by Steven A. Glazer;
for the New Civil Liberties Alliance by Margaret A. Little, Richard A.
Samp, and Mark S. Chenoweth; for Jed H. Shugerman by Jeffrey B.
Dubner; for Andrew N. Vollmer, pro se; and for Ilan Wurman, pro se.
Page Proof Pending Publication

116 SEC
v. JARKESY
Opinion of the Court
rities Exchange Act of 1934, and the Investment Advisers
A
ct of 1940. 48 Stat. 74, 15 U. S. C. §§ 77a et seq.; 48 Stat.
881, 78a et seq.; 54 Stat. 847, 80b–1 et seq. These Acts re-
spectively 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) proh ibits reg u lated individua ls from “obt ai n[ing]
money or property by means of any untrue statement of a
material fact,” as well as causing certain omissions of mate-
rial fact. 15 U. S. C. § 77q(a)(2). As implemented by Rule
10b–5, Section 10(b) prohibits using “any device, scheme, or
artifce to defraud,” making “untrue statement[s] of . . . mate-
rial 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 fnally, 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, de-
ceptive, 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 fle a
suit in federal court. See §§ 77t, 78u, 80b–9. The SEC's
choice of forum dictates two aspects of the litigation: The
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
117
Opinion of the Court
procedural protections enjoyed by the defendant, and the
remedies
available to the SEC.
Procedurally, these forums differ in who presides and
makes legal determinations, what evidentiary and discovery
rules apply, and who fnds facts. Most pertinently, in fed-
eral court a jury fnds the facts, depending on the nature of
the claim. See U. S. Const., Amdt. 7. In addition, a life-
tenured, 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 in-
house, there are no juries. Instead, the Commission pre-
sides and fnds facts while its Division of Enforcement prose-
cutes the case. The Commission may also delegate its role
as judge and factfnder 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 inad-
missible in federal court. See §§ 201.320, 201.326.
When a Commission member or an ALJ presides, the full
Commission can review that offcial's fndings and conclu-
sions, 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 fndings as “conclusive”
if suffciently 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 origi-
nally depended upon the forum chosen by the SEC. Except
Page Proof Pending Publication

Page Proof Pending Publication
118 SEC
v. JARKESY
Opinion of the Court
in cases against registered entities, the SEC could obtain
civ
il penalties only in federal court. See Insider Trading
Sanctions Act of 1984, § 2, 98 Stat. 1264; Securities Enforce-
ment 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 Re-
form and Consumer Protection Act (Dodd-Frank Act), 124
Stat. 1376. That Act “ma[de] the SEC's authority in admin-
istrative 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 (codifed 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 enforce-
ment tools. These penalties consist of fnes 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 fnancial 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 in-
vestment funds, raising about $24 million from 120 “accred-
ited” investors—a class of investors that includes, for exam-
ple, fnancial 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 inves-
tors in at least three ways: (1) by misrepresenting the invest-
ment strategies that Jarkesy and Patriot28 employed, (2) by
lying about the identity of the funds' auditor and prime bro-

Cite
as: 603 U. S. 109 (2024)
119
Opinion of the Court
ker, and (3) by infating the funds' claimed value so that Jar-
kesy
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 Dodd-
Frank 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 re-
viewed the decision and then released its fnal order in 2020.
Id., at 71a–154a. The fnal order levied a civil penalty of
$300,000 against Jarkesy and Patriot28, directed them to
cease and desist committing or causing violations of the anti-
fraud provisions, ordered Patriot28 to disgorge earnings, and
prohibited Jarkesy from participating in the securities indus-
try 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 fnal order.
Id., at 449–450. Applying a two-part test from Granfnan-
ciera, 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 deter-
mined that because these SEC antifraud claims were “akin
to [a] traditional action[ ] in debt,” a jury trial would be re-
quired 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 Sev-
enth Amendment. See id., at 455–459. The panel con-
cluded that the exception did not apply, and that therefore
the case should have been brought in federal court, where a
Page Proof Pending Publication

120 SEC
v. JARKESY
Opinion of the Court
jury could have found the facts pertinent to the defendants'
fraud
liability. Based on this Seventh Amendment violation,
the panel vacated the fnal order. Id., at 459.
It also identifed two further constitutional problems.
First, it determined that Congress had violated the nondele-
gation doctrine by authorizing the SEC, without adequate
guidance, to choose whether to litigate this action in an Arti-
cle 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 pow-
ers. 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. 902
(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 Granfnanciera 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 agen-
cies 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
any of the distinctive areas involving governmental preroga-
tives where the Court has concluded that a matter may be
resolved outside of an Article III court, without a jury. The
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
121
Opinion of the Court
Seventh Amendment therefore applies and a jury is re-
quired.
Since the answer to the jury trial question resolves
this case, we do not reach the nondelegation or removal
issues.
A
We frst explain why this action implicates the Seventh
Amendment.
1
The right to trial by jury is “of such importance and occu-
pies so frm 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 recog-
nized the right as “the glory of the English law,” 3 W. Black-
stone, Commentaries on the Laws of England 379 (8th ed.
1778) (Blackstone), and it was prized by the American colo-
nists. 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.” Res-
olutions 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 justifcation for severing our ties to England. See Decla-
ration of Independence ¶20; see generally Erlinger v. United
States, 602 U. S. 821, 829–832 (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
Page Proof Pending Publication

122 SEC
v. JARKESY
Opinion of the Court
cases.” The Federalist No. 83, p. 495 (C. Rossiter ed. 1961)
(A.
Hamilton) (emphasis deleted). The Framers promptly
adopted the Seventh Amendment to fx that faw. In so
doing, they “embedded” the right in the Constitution, secur-
ing it “against the passing demands of expediency or conven-
ience.” Reid v. Covert, 354 U. S. 1, 10 (1957) (plurality opin-
ion). 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 rati-
fed. Curtis v. Loether, 415 U. S. 189, 193 (1974). As Jus-
tice 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 and 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.” Granfnanciera, 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 court. The de-
veloper responded by invoking his right to a jury trial. Al-
though 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
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
123
Opinion of the Court
directed courts to consider the cause of action and the rem-
edy
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 re-
spondents' 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 rem-
edy is legal is if it is designed to punish or deter the wrong-
doer, 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 re-
medial purpose, but rather can only be explained as also
serving either retributive or deterrent purposes, is punish-
ment.” Austin v. United States, 509 U. S. 602, 610 (1993)
(internal quotation marks omitted). And while courts of eq-
uity could order a defendant to return unjustly obtained
funds, only courts of law issued monetary penalties to “pun-
ish 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 en-
forced in courts of law.” Ibid. The same is true here.
To start, the Securities Exchange Act and the Investment
Advisers Act condition the availability of civil penalties on
six statutory factors: (1) whether the alleged misconduct in-
volved fraud, deceit, manipulation, or deliberate or reckless
disregard for regulatory requirements, (2) whether it caused
harm, (3) whether it resulted in unjust enrichment, account-
ing 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 de-
terrence, and (6) other “matters as justice may require.”
§§ 78u–2(c), 80b–3(i)(3). Of these, several concern culpabil-
Page Proof Pending Publication

Page Proof Pending Publication
124 SEC
v. JARKESY
Opinion of the Court
ity, deterrence, and recidivism. Because they tie the avail-
abi
lity of civil penalties to the perceived need to punish the
defendant rather than to restore the victim, such considera-
tions 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 frst tier penalty. A second tier
penalty may be ordered if the violation involved fraud, de-
ceit, 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 “signifcant risk” of the latter, the defendant is sub-
ject 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 frst place, the criteria that divide these
tiers are also legal in nature. Each tier conditions the avail-
able penalty on the culpability of the defendant and the need
for deterrence, not the size of the harm that must be reme-
died. 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 show
that these civil penalties are designed to be punitive.
The fnal 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 in-
jured 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 defnition does not “restore
the status quo” and can make no pretense of being equitable.
Tull, 481 U. S., at 422.

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
125
Opinion of the Court
In sum, the civil penalties in this case are designed to pun-
ish
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 confrms 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 Re-
statement (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. Illi-
nois 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 Secu-
rities 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, Con-
gress incorporated prohibitions from common law fraud into
federal securities law. The SEC has followed suit in rule-
makings. Rule 10b–5, for example, prohibits “any device,
scheme, or artifce 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 cre-
ated 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. Han-
sen, 599 U. S. 762, 778 (2023) (internal quotation marks omit-

Page Proof Pending Publication
126 SEC
v. JARKESY
Opinion of the Court
ted). 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) (ex-
plaining 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 devel-
oped 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 in-
volve 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, federal securities
fraud is broader. For example, federal securities fraud em-
ploys the burden of proof typical in civil cases, while its com-
mon law analogue traditionally used a more stringent stand-
ard. 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 confrms that
this action is “legal in nature.” Granfnanciera, 492 U. S.,
at 53.

Cite
as: 603 U. S. 109 (2024)
127
Opinion of the Court
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” excep-
tion applies. Under this exception, Congress may assign
the matter for decision to an agency without a jury, consist-
ent 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 Arti-
cle 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 Les-
see 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. Mar-
shall, 564 U. S. 462, 484 (2011). These propositions are criti-
cal to maintaining the proper role of the Judiciary in the
Constitution: “Under `the basic concept of separation of pow-
ers . . . that fow[s] from the scheme of a tripartite govern-
ment' adopted in the Constitution, `the judicial Power of 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; Granfnan-
ciera, 492 U. S., at 51–52; Stern, 564 U. S., at 484. A hall-
mark that we have looked to in determining if a suit concerns
Page Proof Pending Publication

128 SEC
v. JARKESY
Opinion of the Court
private rights is whether it “is made of `the stuff of the tradi-
ti
onal actions at common law tried by the courts at West-
minster 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 presump-
tively 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 ex-
clusively 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 frst recognized the public rights excep-
tion 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. Id., at 274–275. Pursuant to
the warrant, the Government eventually seized and sold a
plot of the collector's land. Id., at 274. Plaintiffs later at-
tacked the purchaser's title, arguing that the initial seizure
was void because the Government had audited the collec-
tor'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 offcers to “pay such
balances of the public money” into the Treasury “as may be
in their hands.” Id., at 281, 285. Indeed, the Court ob-
served, there was an unbroken tradition—long predating the
founding—of using these kinds of proceedings to “enforce
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
129
Opinion of the Court
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 intrud-
ing 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 collec-
tion of revenue. In Oceanic Steam Navigation Co. v. Stra-
nahan, 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 afficted with “loathsome or dangerous
contagious diseases,” and it authorized customs collectors to
enforce the prohibition with fnes. 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 (quot-
ing Buttfeld 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 Oce-
anic Steam Navigation Co., 214 U. S., at 339–340.
1
1
The 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 176–177 (opinion of Sotomayor, J).
It must be reading from a different case than we are. Oceanic Steam
Navigation expressly confnes 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 inappo-
site here, because they all relate to subjects peculiarly within the author-
ity of the legislative department of the Government, and which, from the
necessity of things, required the concession that administrative offcers
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.,
Page Proof Pending Publication

130 SEC
v. JARKESY
Opinion of the Court
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, sub-
ject to a statutory cap, to produce fair competition. If the
President was “satisfed the unfairness [was] extreme,” the
law even authorized him to “exclude[ ]” foreign goods en-
tirely. Ibid. Because the political branches had tradition-
ally held exclusive power over this feld and had exercised 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 cate-
gories 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 benefts such as payments to vet-
erans, 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).
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 (ex-
pressly acknowledging and avoiding comment on “ `limitations' ” of Con-
gress'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 Buttfeld v. Stra-
nahan, 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.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
131
Opinion of the Court
The Court “has not `defnitively explained' the distinction be-
tween
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 typi-
cally evaluated the legal basis for the assertion of the doc-
trine 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 princi-
ples. Murray's Lessee itself, for example, took pains to jus-
tify the application of the exception in that particular in-
stance by explaining that it fowed 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
2
The dissent would brush away these careful distinctions and unfurl a
new rule: that whenever Congress passes a statute “entitl[ing] the Govern-
ment to civil penalties,” the defendant's right to a jury and a neutral Arti-
cle III adjudicator disappears. See post, at 168 (opinion of Sotomayor, J.).
It bases this rule not in the constitutional text (where it would fnd no
foothold), nor in the ratifcation history (where again it would fnd no sup-
port), 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-specifc functional analysis (also not at-
tempted). Instead, the dissent extrapolates from the outcomes in cases
concerning unrelated applications of the public rights exception and from
one opinion, Atlas Roofng 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 be-
cause the Government may extract civil penalties in administrative tribu-
nals 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 refects the settled institutional understandings of the branches.
That case is far weaker when the rights of individuals are directly at stake.

132 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 presump-
tion is in favor of Art. III courts.” Northern Pipeline Con-
str. Co., 458 U. S., at 69, n. 23 (plurality opinion) (citing Glid-
den 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 bal-
ances 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 Article
III.” Stern, 564 U. S., at 484.
2
This is not the frst 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 tri-
bunal to adjudicate” a statutory “fraud claim.” 492 U. S.,
at 37, 50. We did so in Granfnanciera, and the principles
identifed in that case largely resolve this one.
Granfnanciera involved a statutory action for fraudulent
conveyance. As codifed 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
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
133
Opinion of the Court
known at common law. 492 U. S., at 43. Even when Con-
gress
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 desig-
nated fraudulent conveyance actions “core [bankruptcy] pro-
ceedings” and authorized non-Article III bankruptcy judges
to hear them without juries. Id., at 50.
The issue in Granfnanciera was whether this designation
was permissible under the public rights exception. Ibid.
We explained that it was not. Although Congress had as-
signed 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]raditi ona l lega l claims” must be decided by cour ts,
“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 Sev-
enth 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
(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 “quint-
essentially suits at common law.” Id., at 56.
We also considered whether these actions were “closely
i nter tw i ned” w ith the bankr uptcy reg i me. 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, par-
ties with lower priority claims can rush to the courthouse to
Page Proof Pending Publication

134 SEC
v. JARKESY
Opinion of the Court
seek payment before higher priority claims exhaust the es-
t
ate, and an orderly disposition of a bankruptcy is impossible.
Other claims, though, can be brought in standalone suits, be-
cause they are neither prioritized nor subordinated to re-
lated 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 ac-
tions were akin to “suits at common law” and were not insep-
arable from the bankruptcy process. Id., at 54, 56. The
public rights exception therefore did not apply, and a jury
was required.
3
Granfnanciera effectively decides this case. Even when
an action “originate[s] in a newly fashioned regulatory
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 “anti-
fraud provisions of the federal securities laws” for “fraudu-
lent conduct.” App. to Pet. for Cert. 72a–73a (opinion of the
Commission). They provide civil penalties, a punitive rem-
edy 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 124–126. In short, this action involves a “mat-
ter[ ] of private rather than public right.” Granfnanciera,
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).
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
135
Opinion of the Court
4
N
otwithstanding Granfnanciera, the SEC contends the
public rights exception still applies in this case because Con-
gress created “new statutory obligations, impose[d] civil pen-
alties for their violation, and then commit[ted] to an adminis-
trative agency the function of deciding whether a violation
ha[d] in fact occurred.” Brief for Petitioner 21 (internal
quotation marks omitted).
The foregoing from Granfnanciera already does away
with much of the SEC's argument. Congress cannot “con-
jure away the Seventh Amendment by mandating that tradi-
tional legal claims be . . . taken to an administrative tribu-
nal.” 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 Granf-
nanciera was also statutory, see id., at 37, but we neverthe-
less explained that the public rights exception did not apply.
Again, if the action resembles a traditional legal claim, its
statutory origins are not dispositive. See id., at 52, 56.
The SEC's sole remaining basis for distinguishing Granf-
nanciera 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 “criti-
cal distinction” in the public rights analysis is “enforcement
by the executive”); id., at 26 (identifying as “the constitution-
ally 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 . . . suffcient” 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 indi-
viduals interacting in a pre-existing market. To do so, the
Page Proof Pending Publication

136 SEC
v. JARKESY
Opinion of the Court
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 adju-
dicated in Article III courts.
5
The principal case on which the SEC and the dissent rely
is Atlas Roofng Co. v. Occupational Safety and Health Re-
view Commission, 430 U. S. 442 (1977). Because the public
rights exception as construed in Atlas Roofng does not ex-
tend 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
Granfnanciera effectively overruled Atlas Roofng to the
extent that case construed the public rights exception to
allow the adjudication of civil penalty suits in administra-
tive tribunals.
3
The litigation in Atlas Roofng arose under the Occupa-
tional Safety and Health Act of 1970 (OSH Act), a federal
regulatory regime created to promote safe working condi-
tions. 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 Granfnanciera 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
3
The dissent chides us for “leav[ing] open the possibility that Granf-
nanciera might have overruled Atlas Roofng.” Post, at 190, n. 8 (opinion
of Sotomayor, J.). But the author of Atlas Roofng certainly thought
that Gran fnanciera may have done so. See Gran fnanciera, 492 U. S.,
at 79 (White, J., dissenting) (“Perhaps . . . Atlas Roofng is no longer good
law after today's decision.”); see also id., at 71, n. 1 (Gran fnanciera “can
be read as overruling or severely limiting ” Atlas Roofng).
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
137
Opinion of the Court
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 regula-
tions 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 Roofng, 430 U. S., at 447 (dis-
cussing 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 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 occu-
pational 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 Sev-
enth Amendment. See Atlas Roofng, 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 Sev-
enth Amendment[ ].” Id., at 455. As the Court explained,
the case involved “a new cause of action, and remedies there-
for, unknown to the common law.” Id., at 461. The Sev-
enth Amendment, the Court concluded, was accordingly “no
bar to . . . enforcement outside the regular courts of law.”
Ibid.
The cases that Atlas Roofng relied upon did not extend
the public rights exception to “traditional legal claims.”
Granfnanciera, 492 U. S., at 52. Instead, they applied the
exception to actions that were “ `not . . . suit[s] at common
Page Proof Pending Publication

Page Proof Pending Publication
138 SEC
v. JARKESY
Opinion of the Court
law or in the nature of such . . . suit[s].' ” Atlas Roofng, 430
U
. S., at 453 (quoting NLRB v. Jones & Laughlin Steel Corp.,
301 U. S. 1, 48 (1937)); see Atlas Roofng, 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 Oce-
anic Steam Navigation Co.). Indeed, the Court recognized
that if a case did involve a common law action or its equiva-
lent, a jury was required. See 430 U. S., at 455 (“ `[W]here
the action involves rights and remedies recognized at com-
mon law, it must preserve to parties their right to a jury
trial.' ” (quoting Pernell v. Southall Realty, 416 U. S. 363, 383
(1974)); Atlas Roofng, 430 U. S., at 458–459 ( jury required
when “courts of law supplied a cause of action and an ade-
quate remedy to the litigant”).
Atlas Roofng concluded that Congress could assign the
OSH Act adjudications to an agency because the claims were
“unknown to the common law.” Id., at 461. The case there-
fore 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 con-
duct,” 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 reasoni ng of At l as Ro o fing cannot suppor t any
broader rule. The dissent chants “Atlas Roofng” like a
mantra, but no matter how many times it repeats those
words, it cannot give Atlas Roofng substance that it lacks.
4
4
Reading the dissent, one might also think that Atlas Roofng is among
this Court's most celebrated cases. As the concurrence shows, Atlas
Roofng represents a departure from our legal traditions. See post, at
152–159 (opinion of Gorsuch, J.).
This view is also refected in the scholarship. Commentators writing
comprehensively on Article III and agency adjudication have often simply

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
139
Opinion of the Court
Even as Atlas Roofng invoked the public rights exception,
the
defnition 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 Govern-
ment sues in its sovereign capacity to enforce public rights
created by statutes.” 430 U. S., at 450; see id., at 458.
After Atlas Roofng, this Court clarifed 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
ignored the case. See, e. g., R. Fallon, Of Legislative Courts, Administra-
tive Agencies, and Article III, 101 Harv. L. Rev. 915 (1988) (no citation to
Atlas Roofng); J. Harrison, Public Rights, Private Privileges, and Article
III, 54 Ga. L. Rev. 143 (2019) (same); W. Baude, Adjudication Outside Arti-
cle 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
Roofng did “not recogniz[e] or [mis]understood” “careful distinctions de-
veloped by . . . earlier judges”); G. Young, Federal Courts & Federal
Rights, 45 Brooklyn L. Rev. 1145, 1153 (1979) (“The Atlas Court . . . failed
to offer an adequate justifcation for its interpretation of the seventh
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 Rights J. 407, 436 (1995)
(criticizing Atlas Roofng 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 His-
torical Version of the Jury in an Age of Administrative Factfnding and
Sentencing Guidelines, 47 S. Tex. L. Rev. 291, 298 (2005) (questioning
Atlas Roofng for “invert[ing] and turn[ing] on its head the Apprendi doc-
trine'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 Roofng 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.

Page Proof Pending Publication
140 SEC
v. JARKESY
Opinion of the Court
whenever Congress assigns a matter to an agency for adjudi-
cati
on. See Granfnanciera, 492 U. S., at 52.
For its part, the dissent also seems to suggest that Atlas
Roofng establishes that the public rights exception applies
whenever a statute increases governmental effciency. Post,
at 180–181 (opinion of Sotomayor, J.). Again, our precedents
foreclose this argument. As Stern explained, effects like in-
creasing effciency 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 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 Roofng 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 Roofng does not confict with our conclu-
sion. 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 Arti-
cle III court. We do not reach the remaining constitutional

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
141
Gorsuch, J., concurring
issues and affrm the ruling of the Fifth Circuit on the Sev-
enth
Amendment ground alone.
The judgment of the Court of Appeals for the Fifth Circuit
is affrmed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Gorsuch, with whom Justice Thomas joins,
concurring.
The Court decides a single issue: Whether the Securities
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, lib-
erty, 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
time-honored principles. Taken together, all three provi-
sions 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 Commissi oners approved
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,

142 SEC
v. JARKESY
Gorsuch, J., concurring
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 117–118. 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
traditi ona l procedures desig ned 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 fled charges against Mr. Jarkesy.
There is little mystery why. The new law gave the SEC's
Commissioners—the same offcials who authorized the suit
against Mr. Jarkesy—the power to preside over his case
themselves and issue judgment. To be sure, the Commis-
sioners opted, as they often do, to send Mr. Jarkesy's case in
the frst 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 diffcult, if not impossi-
ble, for th[e ALJ] to convey the image of being an impartial
fact fnder.” B. Segal, The Administrative Law 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
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
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
143
Gorsuch, J., concurring
Going in, then, the odds were stacked against Mr. Jarkesy.
The
numbers confrm as much: According to one report, dur-
ing 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 divi-
sion.' ” 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 fles a civil complaint in court, a
defendant may obtain from the SEC a large swathe of docu-
ments 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 fexibility, as well, to set deadlines for discovery and
other matters to meet the needs of the case. See Rule 16.
And come trial, the Federal Rules of Evidence apply, mean-
ing 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).
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).

Page Proof Pending Publication
144 SEC
v. JARKESY
Gorsuch, J., concurring
But the defendant enjoys no general right to discovery.
Though
ALJs enjoy the power to issue subpoenas on the re-
quest of litigants like Mr. Jarkesy, § 201.232(a), they “often
decline to issue [them] or choose to signifcantly narrow their
scope,” G. Mark, SEC and CFTC Administrative Proceed-
ings, 19 U. Pa. J. Const. L. 45, 68 (2016). Oral depositions
are capped at fve, 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 hear-
say, do not apply with the same rigor they do in court.
§ 201.235(a)(5); see § 201.230. For that reason, live testi-
mony 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? Accompa-
nying its charges, the SEC disclosed 700 gigabytes of data—
equivalent to between 15 and 25 million pages of informa-
tion—it had collected during its investigation. App. to Pet.
for Cert. 164a; Complaint in Jarkesy v. U. S. SEC, No. 1:14–
cv–00114 (D DC, 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 pre-
pare 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 six months
to fle [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 ar-
rived seven months after the hearing, the ALJ agreed with
the SEC on every charge. See App. to Pet. for Cert. 155a–
156a, 212a.

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
145
Gorsuch, J., concurring
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 defend-
ant. 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 fnd a jury
there, only a judge who must follow the agency's fndings if
they are supported by “ `more than a mere scintilla' ” of evi-
dence. Biestek v. Berryhill, 587 U. S. 97, 103 (2019).
Mr. Jarkesy fled 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 responsi-
ble for pressing the action against Mr. Jarkesy. While his
appeal was pending, employees in that division—including
an “ `Enforcement Supervisor' ” in the regional offce prose-
cuting Mr. Jarkesy—accessed confdential memos by the
Commissioners' advisors about his appeal. See SEC, Sec-
ond Commission Statement Relating to Certain Administra-
tive Adjudications 3 (June 2, 2023).
II
A
If administrative proceedings like Mr. Jarkesy's seem a
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

146 SEC
v. JARKESY
Gorsuch, J., concurring
di ffered from those available in everyday common-law
cour
ts.
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 them-
selves with maritime matters arising on “the oceans and riv-
ers 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 offcials could try cases against colo-
nists without a jury. Id., at 21.
Confned 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 fll “ `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 cus-
toms laws. But in the decade before the Revolution, the
drip, drip, drip of expanding power became a torrent, as Par-
liament allowed more and more actions to be brought in colo-
nial 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,
colonial juries “ `were not to be trusted.' ” D. Lovejoy,
Rights Imply Equality: The Case Against Admiralty Juris-
diction 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.
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
147
Gorsuch, J., concurring
But by expanding the reach of vice-admiralty jurisdiction
i
n the Colonies, Parliament denied similar protections to
Amer icans. See Erl inge r v. Un i ted Sta tes, 602 U. S.
821, 832 (2024).
Vice-admiralty court judges also lacked independence.
While judges in England since the end of the 17th century
generally enjoyed the protection of tenure during good be-
havior, 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 offcials were not
requ ired to br i ng many of their cases before the v ice-
admiralty courts. Often, Parliament gave those offcials the
option to proceed in either the ordinary common-law courts
or the vice-admiralty courts. Unsurprisingly, though, they
sought to fle where they were most likely to win. And “[i]n
this contest, the vice-admiralty courts were usually the vic-
tors.” 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 co-
lonial judges were “dependent on the 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, ad-
monishing the King for “ma[king] Judges dependent on his
Will alone,” ¶11, and “[f]or depriving [the colonists] in many
cases, of the benefts of Trial by Jury,” ¶20. By that point,
Page Proof Pending Publication

Page Proof Pending Publication
148 SEC
v. JARKESY
Gorsuch, J., concurring
however, the “musket fre at Lexington and Concord . . .
sig
naled 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 832. 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., dissent-
ing). As the Court has recognized, this meant the Execu-
tive 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] decision-
making process might appear,” Ortiz v. United States, 585
U. S. 427, 465 (2018) (Alito, J., dissenting). Nor could Con-
gress “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 defend-
ant an independent judge rather than one dependent on
those who hold political power. But what would stop Con-
gress from requiring litigants to navigate vice-admiralty's
alien procedures in all federal cases? Or from making “fed-
eral 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 prom-
inent Anti-Federalist observed, “brings with it an open and
public discussion of all causes, and excludes secret and arbi-
trary proceedings.” Letter from a Federal Farmer (Jan. 18,

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
149
Gorsuch, J., concurring
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 govern-
ment, the jury may check them.” Ibid. As originally com-
posed, 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? Fed-
eral Farmer 15, at 322. If so, asked another, “what satisfac-
tion can we expect from a lordly court of justice, always
ready to protect the offcers 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. Er-
linger, 602 U. S., at 830. As the Court details, the Seventh
Amendment promised the right to a jury trial in “ `[s]uits at
common law.' ” Ante, at 122 (quoting Amdt. 7). But be-
cause 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 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 122. 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 re-
maining 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 un-

150 SEC
v. JARKESY
Gorsuch, J., concurring
derstood, this provision prohibited the government from “de-
pr
iv[ing] a person of those rights without affording him the
beneft 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 830–831.
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 com-
mon law” had to be observed before any such deprivation
could take place. 3 J. Story, Commentaries on the Constitu-
tion 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, opportu-
nity 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 as “a re-
straint 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 fac t, each prov isi on requires the resu lt the Cour t
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
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
151
Gorsuch, J., concurring
something akin to a traditional fraud claim: At the found-
i
ng, both kinds of actions were tried in common-law courts.
See ante, at 122–125 (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 cog-
nizance” and handing it over to the Executive Branch for an
in-house trial. Murray's Lessee, 18 How., at 284; see supra,
at 148.
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 quota-
tion marks omitted). As we have seen, the government can-
not evade the Seventh Amendment so easily. See ante, at
122; supra, at 148–149.
Third, were there any doubt, the Due Process Clause con-
frms 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 “de-
priv[e]” Mr. Jarkesy of “property,” Amdt. 5, due process de-
mands nothing less than “the process and proceedings of the
common law,” 3 Story § 1783, at 661. That means the regu-
lar 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 re-
view, see supra, at 149–150.
Page Proof Pending Publication

152 SEC
v. JARKESY
Gorsuch, J., concurring
III
A
The
government resists these conclusions. As the gov-
ernment 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 obliga-
tions, impose civil penalties for their violation, and then com-
mit to an administrative agency the function of deciding
whether a violation has in fact occurred.” Brief for Peti-
tioner 21 (emphasis added; internal quotation marks omit-
ted). 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
“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
134–136. No one denies that, under the public rights excep-
tion, Congress may allow the Executive Branch to resolve
certain matters free from judicial involvement in the frst
instance. Ante, at 120, 127. 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 131, 135–136. Instead, public rights are a narrow class
defned and limited by history. As the Court explains, that
class has traditionally included the collection of revenue, cus-
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
153
Gorsuch, J., concurring
toms enforcement, immigration, and the grant of public bene-
fts.
Ante, at 128–130.
How did these matters fnd themselves categorized as pub-
lic rights? Competing explanations abound. Some have
pointed to ancient practical considerations. In Murray's
Lessee, for example, the Court reasoned that the “[i]mpera-
tive 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 under-
stood 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 adjudicat-
ing a claimant's qualifcations for a land grant under a stat-
ute—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.
Whatever their roots, traditi onally recog nized public
rights have at least one feature in common: a serious and un-
broken historical pedigree. See Culley v. Marshall, 601 U. S.
377, 397–398 (2024) (Gorsuch, J., concurring); ante, at 127–
130. For good reason. If the Article III “judicial Power”
encompasses “the stuff of the traditional actions at common
law tried by the courts at Westminster in 1789,” ante, at 128
(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 frmly established
historical practice to the contrary”). So too with the Due
Process Clause. If that clause sets customary common-law
Page Proof Pending Publication

154 SEC
v. JARKESY
Gorsuch, J., concurring
practice as the ordinary procedural baseline, see Part II–B,
sup
ra, clear historical evidence of a different practice might
warrant a departure from that baseline, see Murray's Les-
see, 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 132, we
look for some “deeply rooted” tradition of nonjudicial adjudi-
cation 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 proce-
dures for customs collection, for example, because they were
consistent with both “the common and statute law of Eng-
land 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 ante, at
128–129. 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 tradi-
tional judicial procedures. Ante, at 123–126; supra, at 150–
151. Just as SEC practices themselves largely refected 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—
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
155
Gorsuch, J., concurring
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 em-
ployers to compensate employees for injuries occurring at
sea. 44 Stat. 1426. The law further assigned primary re-
sponsibility for deciding liability disputes to an Executive
Branch offcial, 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 frst 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 tradi-
tionally tried in court. Ibid. The Court even conceded
that, under the law, the factual “fndings of the deputy com-
missioner, supported by evidence and within the scope of his
authority, shall be fnal”: An Article III court could not re-
view the facts anew. Id., at 46. But the Court upheld the
scheme and its limited judicial review anyway.
To get there took a dash of fction 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 fction that Executive Branch offcials
might similarly act as assistants or adjuncts to Article III
courts. And because judges often adopt the proposed fnd-
ings 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 fndings of Executive
Branch offcials as essentially “fnal.” Id., at 46. “To hold
otherwise,” the Court reasoned, “would be to defeat the ob-
vious purpose of the legislation”: “to furnish a prompt, con-

156 SEC
v. JARKESY
Gorsuch, J., concurring
tinuous, expert and inexpensive method for dealing with a
class
of questions of fact which are peculiarly suited to exam-
ination and determination by an administrative agency spe-
cially 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 excep-
tion. See Culley, 601 U. S., at 398 (Gorsuch, J., concurring).
In deciding those matters, courts had long tolerated some
fexibility in procedures, had long restricted appellate review
of factual fndings, 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 gov-
ernment expressed concern at this development. Consider
just two typical examples. Were an agency endowed with
the power to assess civil penalties, advised a committee over-
seen by Attorney General (soon-to-be Justice) Robert H.
Jackson, “the aggrieved person” should at least “be permit-
ted review de novo by a Federal district court.” Final Re-
port of Attorney General's Committee on Administrative
Procedure 147 (1941). That was the only way, the commit-
tee opined, “to resolve any doubts concerning the constitu-
tionality 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 mak-
ing, 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).
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
157
Gorsuch, J., concurring
The high-water mark of the movement toward agency ad-
judicati
on may have come in 1977 in Atlas Roofng 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 aris-
ing under any “ `new statutory obligations,' ” Brief for Peti-
tioner 22 (quoting Atlas Roofng, 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 Granfnanciera, S. A. v. Nordberg, 492
U. S. 33 (1989), this Court cabined Atlas Roofng so narrowly
that the author of Atlas Roofng complained that the Court
had “overrul[ed]” it. 492 U. S., at 71, n. 1 (White, J., dissent-
ing); see ante, at 136, n. 3. Far from endorsing the notion
that any new statutory obligation could qualify for treatment
as a public right, for example, the Court in Granfnanciera
read Atlas Roofng as having “left the term `public rights'
undefned.” 492 U. S., at 51, n. 8. And since then this
Court has, in one case after another, “adhere[d]” only to
Atlas Roofng's “general teaching ” that Congress may con-
stitutionally adopt “new statut[es]” assigning matters that
indeed qualify as “public rights . . . to an administrative
agency.” 492 U. S., at 51 (internal quotation marks omit-
ted); 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 Roofng,
our public rights jurisprudence remained muddled. Since
then, the Court has suggested that public rights might in-
clude those “involving statutory rights that are integral
parts of a public regulatory scheme.” Granfnanciera, 492
U. S., at 55, n. 10. We have changed course and tried our
hand at a fve-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
Page Proof Pending Publication

158 SEC
v. JARKESY
Gorsuch, J., concurring
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 require-
ments of Article III.” Schor, 478 U. S., at 851. So, for
example, we have asked whether insistence on “the institu-
tional integrity of the Judicial Branch” would “unduly con-
strict 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 tradi-
tional understanding of public rights. Adhering to Granf-
nanciera, the Court rejects the government's overbroad
reading of Atlas Roofng and recognizes that the kind of
atextual and ahistorical (not to mention confusing) tests it
inspired do little more than ask policy questions the Consti-
tution settled long ago. Yes, a limited category of public
rights were originally and even long before understood to 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 independ-
ent 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 “reaffrm[ed],” many
times and “emphatically[,] that the First Amendment does
not permit the State to sacrifce speech for effciency.”
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 in-
terest in expedient law enforcement cannot, without more,
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
159
Gorsuch, J., concurring
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,' ” Dun-
can 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 842 (“There is no effciency 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., dis-
senting). They exist to “protect the individual.” Bond v.
United States, 564 U. S. 211, 222 (2011). And their protec-
tions are no less vital than those afforded by other constitu-
tional 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 fa-
vour, [or] the will of rulers.” 3 Story § 1568, at 426; id.,
§ 1783, at 661. In recognizing as much today, the Court es-
sentially follows the advice of Justices Brennan and Mar-
shall, “limit[ing] the judicial authority of non-Article III fed-
eral tribunals to th[o]se few, long-established exceptions”
that bear the sanction of history, and “countenanc[ing] no
fur ther erosion. ” Schor, 478 U. S., at 859 (Brennan, J.,
joined by Marshall, J., dissenting).
C
The dissent's competing account of public rights is aston-
ishing. 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 187 (opinion of
Sotomayor, J.). But, thanks to public rights doctrine, the
Page Proof Pending Publication

Page Proof Pending Publication
160 SEC
v. JARKESY
Gorsuch, J., concurring
dissent insists, the Constitution imposes no limits on the gov-
er
nment's power to seek civil penalties “outside the regular
courts of law where there are no juries.” Post, at 168. In
that feld, the Constitution falls silent. The dissent does not
even attempt to deploy any of the contrived balancing tests
that emerged in Atlas Roofng's aftermath to rein in the
government's power. But where in Article III, the Seventh
Amendment, and due process can the dissent fnd this new
rule? What about founding-era practice or original mean-
ing? 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
178 (emphasis added). But the dissent's approach to our
precedents is like a picky child at the dinner table. It se-
lects only a small handful while leaving much else untouched.
To start, the dissent lingers briefy 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 175–176; supra, at 148, 150–154.
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 de-
cision, the dissent contends that “Congress [has] routinely
`impose[d] appropriate obligations' ” by statute and given
“ `executive offcers the power to enforce' ” them “ `without
the necessity of invoking the judicial power.' ” Post, at 177
(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
feld of immigration, the area of law at issue there. See id.,
at 339. Unmentioned, too, is Stranahan's explanation that

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
161
Gorsuch, J., concurring
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 ple-
nary power' ” over them “because they all relate to subjects
peculiarly within the authority of the legislative depart-
ment.” Id., at 334, 339.
Really, one has to wonder: If the public rights exception is
as broad and unqualifed 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 Gover nment in its sovereig n capacity”?
Post, at 170. The answer, of course, is that the Constitution
has never countenanced the dissent's notion that the Execu-
tive 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 coer-
cive “pressure from unchecked prosecutors.” Culley, 601
U. S., at 405, 407 (Sotomayor, J., joined by Kagan and Jack-
son, JJ., dissenting). They have contended that the Judiciary
has an affrmative 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., concurring in judgment in
part and dissenting in part) (internal quotation marks omitted;

Page Proof Pending Publication
162 SEC
v. JARKESY
Gorsuch, J., concurring
emphasis deleted). And like most every current Member of
th
is 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 unqualifed
that it refuses to commit itself on the question whether even
muted forms of judicial review—such as asking executive tri-
bunals 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 con-
ception of public rights. See Part I, supra; post, at 174, n. 4.
Gone, too, is any role for the jury—for why would the gov-
ernment 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 “ `the public-rights doctrine does not extend to . . . crimi-
nal matters.' ” Post, at 193, n. 9. But the dissent does not
(and cannot) explain how that fts 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 194, what could possibly better
ft 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
2
The best the dissent can do is to observe that “Article III itself pre-
scribes that `[t]he trial of all Crimes . . . shall be by Jury.' ” Post, at 193,
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 work-
ing 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 171. And under that logic, there is no apparent rea-
son why the government could not evade Article III's jury-trial right just as

Cite
as: 603 U. S. 109 (2024)
163
Gorsuch, J., concurring
All but admitting its view has no support in “historical
prac
tice dating back to the founding,” the dissent chastises
the Court for daring to rely on that practice to fesh out the
scope of the public rights exception. Post, at 184. It would
be so much simpler, the dissent says, to adopt its rule permit-
ting 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. 680, 712 (2024) (Gorsuch, J., concurring). But
looking to original meaning and historical practice informing
it is exactly how this Court proceeds in so many other con-
texts 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
829–832; 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 substi-
tuti ng our w i l l for theirs. ” Rah imi, 602 U. S., at 711
(Gorsuch, J., concurr i ng); see Crawfo rd, 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 de-
pends on a judicial balancing test. One that is “fexible,”
defes “technical conception,” lacks “fxed content,” and will
“not always yield the same result” even when applied in sim-
ilar circumstances. Culley, 601 U. S., at 413 (opinion of So-
tomayor, J.) (internal quotation marks omitted). As we
have seen, that was essentially the course some pursued, too,
easily, simply by choosing to route criminal prosecutions through execu-
tive agencies.
Page Proof Pending Publication

164 SEC
v. JARKESY
Gorsuch, J., concurring
when it came to the public rights exception in the fallout
from
Atlas Roofng. See Part III–B, supra. But that kind
of “ `we know it when we see it' ” approach to constitutional
rights, post, at 187, can hardly claim any serious advantages
when it comes to workability or predictability.
Failing all else, the dissent retreats to Atlas Roofng. 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 180, and engaging in “a power grab,” post,
at 202, by failing to give Atlas Roofng its broadest possible
construction. It's a “disconcerting ” accusation indeed, post,
at 201, and a misdirected one at that. Construed as broadly
as the dissent proposes, Atlas Roofng's view of public rights
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
138, n. 4; Part III–B, supra. Meanwhile, the Court's alter-
native construction of Altas Roofng fts far more comfort-
ably with all those legal sources. In that respect, the major-
ity's approach is of a piece with Granfnanciera's similar
approach 35 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 dissent-
ers have previously acknowledged, that course is neither un-
usual nor at odds with stare decisis. See id., at 474–475; see
also Brown v. Davenport, 596 U. S. 118, 141 (2022) (“We nei-
ther expect nor hope that our successors will comb these
pages for stray comments and stretch them beyond their con-
text—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 Roofng, consider one more feature of the
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
165
Gorsuch, J., concurring
alternative the dissent proposes. In defending the broadest
possible
construction of Atlas Roofng's public rights discus-
sion, the dissent necessarily endorses that decision's excep-
tionally narrow conception of the Seventh Amendment. See
post, at 171–172. After all, as public rights expand, so too
the jury-trial right must contract. Yet Atlas Roofng's dis-
cussion of the jury-trial right, no less than its discussion of
public rights, is diffcult to square with precedent and origi-
nal meaning.
Recall that, from the start, the Seventh Amendment was
understood to protect that right “not merely” in suits recog-
nized 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 until
well into the 1970s, noting, for example, that “the applica-
bility of the constitutional right to jury trial in actions en-
forcing statutory rights” was “a matter too obvious to be
doubted.” Curtis v. Loether, 415 U. S. 189, 193 (1974) (inter-
nal 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 tradition-
ally enforced in an action at law.” Ibid.
Atlas Roofng 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 Amend-
ment was, of course, a key move in Atlas Roofng. For
without it, the Court would have been hard pressed to sug-
gest the public rights doctrine permits Congress to route
Page Proof Pending Publication

166 SEC
v. JARKESY
Gorsuch, J., concurring
any “ `new cause of action' ” for adjudication before agencies
where
juries do not sit. Post, at 179 (quoting Atlas Roofng,
430 U. S., at 461).
Almost immediately, however, the Court rejected Atlas
Roofng's analysis, not just with respect to public rights doc-
trine but the Seventh Amendment, too. Returning to our
mainstream precedents, the Court reaffrmed the applicabil-
ity of the Seventh Amendment to new causes of action, frst
in Tull v. United States, 481 U. S. 412 (1987), and then in Gran-
fnanciera. See ante, at 122–123. 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.” Team-
sters v. Terry, 494 U. S. 558, 564 (plurality opinion).
Today, the Court respects and follows this longstanding
message in our Seventh Amendment precedents. The dis-
sent chooses another path entirely—adopting a reading of
Atlas Roofng 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 202. All of which, at
bottom, amounts to little more than a complaint with the
Constitution's revolutionary promise of popular oversight of
government offcials—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
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
167
Sotomayor, J., dissenting
stake in his case or others like it. While incursions on old
r
ights 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 with-
out a jury, without an independent judge, and under proce-
dures foreign to our courts—certainly contains no such lim-
its. That is why the Constitution built “high walls and clear
distincti ons” to safeg uard individua l l iber ty. Pl au t 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 proce-
dures designed to ensure a fair trial in a fair forum. In reaf-
frming all this today, the Court hardly leaves the SEC with-
out ample powers and recourse. The agency is free to
pursue all of its charges against Mr. 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 obser-
vations, I am pleased to concur.
Justice Sotomayor, with whom Justice Kagan and
Justice Jackson join, dissenting.
Throughout our Nation's history, Congress has authorized
agency adjudicators to fnd 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 Govern-
ment to be tried before a jury in federal district court. Con-
gress can instead assign them to an agency for initial adjudi-
cation subject to judicial review. This Court has blessed
that practice repeatedly, declaring it “the `settled judicial
construction' ” all along; indeed, “ `from the beginning.' ”
Atlas Roofng Co. v. Occupational Safety and Health Review
Comm'n, 430 U. S. 442, 460 (1977). Unsurprisingly, Con-
gress has taken this Court's word at face value. It has
enacted more than 200 statutes authorizing dozens of agen-
Page Proof Pending Publication

168 SEC
v. JARKESY
Sotomayor, J., dissenting
cies to impose civil penalties for violations of statutory obli-
gati
ons. Congress had no reason to anticipate the chaos to-
day's majority would unleash after all these years.
Today, for the very frst time, this Court holds that Con-
gress violated the Constitution by authorizing a federal
agency to adjudicate a statutory right that inheres in the
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 federal-securities
fraud before a jury in federal court. The nature of the rem-
edy 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 be-
cause it must come only to the Judiciary.
The majority today upends longstanding precedent and
the established practice of its coequal partners in our tripar-
tite 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) investi-
gated respondents George Jarkesy and his advisory frm
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 fled suit in federal court or adjudicated the mat-
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
169
Sotomayor, J., dissenting
ter in an administrative enforcement action subject to judi-
cia
l 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 Act of 1933,
the Securities Exchange Act of 1934, and the Investment
Advisers Act of 1940. Specifcally, the SEC alleged that re-
spondents falsely told brokers and investors that: (1) a prom-
inent accounting frm 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 capi-
tal 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 misrep-
resenting the funds' investment strategies, respondents al-
legedly overvalued the funds' holdings to charge higher man-
agement 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 determi-
nation. The Commission also denied respondents' constitu-
tional challenges to the order, including that the agency's
in-house adjudication violated respondents' Seventh Amend-
ment 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 profts.
Respondents fled a petition for review in the Fifth Circuit.
34 F. 4th 446, 466 (2022). A divided panel granted the peti-
tion 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
Page Proof Pending Publication

170 SEC
v. JARKESY
Sotomayor, J., dissenting
because the federal-securities antifraud provisions were sim-
i
lar to common-law fraud claims to which the jury-trial right
would attach. See id., at 451–459. Because the SEC forced
respondents to proceed within the agency, the 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 affrms the Fifth Circuit's decision, notwith-
standing 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 adminis-
trative schemes like the SEC's: agency adjudications of stat-
utory claims for civil penalties brought by the Government
in its sovereign capacity. See Part II–B (infra, at 173–180).
In assessing the constitutionality of such adjudications, the
political branches' “ `[l]ong settled and established practice,' ”
which this Court has upheld and reaffrmed 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 (So-
1
As the majority notes, respondents also prevailed on two other consti-
tutional challenges in the Court of Appeals. See ante, at 120. The di-
vided panel concluded that: (1) the SEC's discretion to bring the case
within the agency instead of federal court violated the nondelegation doc-
trine; and (2) a for-cause restriction on the Administrative Law Judge's
removal violated Article II and the separation of powers. 34 F. 4th, at
459–465. 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.
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
171
Sotomayor, J., dissenting
tomayor, J., concurring in judgment); Consumer Financial
Pro
tection Bureau v. Community Financial Services Assn.
of America, Ltd., 601 U. S. 416, 442 (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 chal-
lenge, 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 120–121. 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 com-
mon 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) (Mar-
shall, 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”). Con-
sistent with that understanding, this Court has held repeat-
edly that “the Seventh Amendment is not applicable to ad-
ministrative proceedings.” Tull v. United States, 481 U. S.
412, 418, n. 4 (1987); accord, Atlas Roofng, 430 U. S., at 454–
455; Curtis v. Loether, 415 U. S. 189, 195 (1974). Factfnding
by a jury is “incompatible with the whole concept of adminis-
Page Proof Pending Publication

Page Proof Pending Publication
172 SEC
v. JARKESY
Sotomayor, J., dissenting
trative adjudication,” which empowers executive offcials to
f
nd the relevant facts and apply the law to 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]ui[t]' ” must be one
“ `at common law' ” means that the claim at issue must be
“ `legal in nature.' ” Ante, at 122. 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. Granfnanciera, S. A. v. Nordberg, 492 U. S.
33, 53 (1989); Atlas Roofng, 430 U. S., at 454, n. 12, 461, n. 16.
Yet when, as here, the claim proceeds in a non-Article 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 enti-
ties 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.,
2
Since the founding, Executive Branch offcials have adjudicated certain
matters, while others have required resolution in an Article III court.
An executive offcial properly vested with the authority to fnd facts, apply
the law to those facts, and impose the consequences prescribed by law
exercises executive power under Article II, not judicial power under Arti-
cle III. See Arlington v. FCC, 569 U. S. 290, 305, n. 4 (2013) (explaining
that agency rulemaking and adjudications may “take `legislative' and `judi-
cial' 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. 109 (2024)
173
Sotomayor, J., dissenting
at 345 (explaining that if non-Article III adjudication is per-
missible
, then “ `the Seventh Amendment poses no independ-
ent bar to the adjudication of that action by a nonjury fact-
fnder' ” (quoting Granfnanciera, 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 con-
ducted frst, 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 factfnder to adjudicate the dispute.
So, the critical issue in this type of case is whether Con-
gress can assign a particular matter to a non-Article III
factfnder.
B
For more than a century and a half, this Court has an-
swered that Article III question by pointing to the distinc-
tion between “private rights” and “public rights.” See Mur-
ray'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 as-
signed 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 130–131. 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
3
Every 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.” Gran fnanciera,
S. A. v. Nordberg, 492 U. S. 33, 55, n. 10 (1989) (involving dispute between
private parties in bankruptcy court); see ante, at 130–131 (citing Oil States
Page Proof Pending Publication

174 SEC
v. JARKESY
Sotomayor, J., dissenting
settled and undisputed that, at a minimum, a matter of public
r
ights arises “between the government and persons subject
to its authority in connection with the performance of the
constitutional functions of the executive or legislative de-
partments.” 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, Granfnanciera, 492
U. S., at 51, and n. 8; Atlas Roofng, 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 pub-
lic—that is, rights pertaining to claims brought by or against
the United States.” Granfnanciera, 492 U. S., at 68–69
(Scalia, J., concurring in part and concurring in judgment);
see ibid. (collecting sources). So, while this Court has rec-
ognized public rights in certain disputes between private
parties, see infra, at 185–186, the doctrine's heartland con-
sists 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 Roofng, 430 U. S., at 450–455 (collecting cases).
4
This
Energy Services, LLC v. Greene's Energy Group, LLC, 584 U. S. 325, 334
(2018) (involving patent dispute between private parties before the U. S.
Patent and Trademark Offce); 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
any due process concerns that might arise from having executive offcials
deprive someone of their property without review in an Article III
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
175
Sotomayor, J., dissenting
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 fed-
eral customs collector to produce public funds that the Gov-
ernment 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 offcial's adjudication of the
facts did not violate Article III. The scheme was constitu-
tional, 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
court. See Atlas Roofng 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 fnes for their violation to an administrative agency
without any sort of intervention by a court at any stage of the proceed-
ings”); accord, Oil States, 584 U. S., at 344 (same); Tr. of Oral Arg. 29
(Principal Deputy Solicitor General) (stating that “the Court has empha-
sized that judicial review of agency action may well be required” and the
Due Process Clause may “ha[ve] something to say” about that require-
ment). The concurrence reproaches this dissent for declining to address
any potential defciencies in this administrative scheme, as well as failing
to specify which forms of judicial review may be constitutionally required,
see ante, at 162 (opinion of Gorsuch, J.), even though respondents did
not raise any due process challenge in this case. Deciding whether this
statutory scheme is procedurally defcient 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)).
Page Proof Pending Publication

Page Proof Pending Publication
176 SEC
v. JARKESY
Sotomayor, J., dissenting
Government's exercise of its constitutional power to collect
re
venue. 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 en-
dorsed 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 offcial'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 off-
cial determined the facts, adjudicated the violation, and en-
forced 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 specifc prerogatives,
the Stranahan Court went out of its way to explain that
the “settled judicial construction” that civil-penalty claims
brought by the Government could be assigned to the Execu-
tive for initial adjudication extended “not only as to tariff
but as to internal revenue, taxation and other subjects,” in-
cluding 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 de-
pend upon the exertion of judicial power, either by civil or
criminal process.” Id., at 338. In words that could have
been written in response to today's ruling, the Court ex-
plained that such a “proposition magnifes the judicial to the
detriment of all other departments of the Government, disre-
gards many previous adjudications of this court and ignores

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
177
Sotomayor, J., dissenting
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 execu-
tive offcials “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 pur-
suant 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 specifed 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 offcers the power to enforce such penalties with-
out the necessity of invoking the judicial power.” Id., at
339. Far from limiting the public-rights doctrine to the par-
ticular context in Stranahan and prior cases, this Court has
expressly rejected the notion that the public-rights doctrine
is so confned. See infra, at 184–185. This Court has re-
peatedly approved Congress's assignment of public rights to
agencies in diverse areas of the law, refecting Congress's
varied constitutional powers.
5
A nonexhaustive list in-
cludes “interstate and foreign commerce, taxation, immigra-
tion, the public lands, public health, the facilities of the post
offce, pensions and payments to veterans,” Crowell, 285
U. S., at 51, and n. 13 (collecting cases); see also, e.g., Helve-
ring 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) (re-
5
The majority's fxation on this dissent's discussion of Stranahan, see
ante, at 129, n. 1, misses the fact that Stranahan exists within a long line
of cases recognizing the diverse areas of the law comprising the public-
rights doctrine.

178 SEC
v. JARKESY
Sotomayor, J., dissenting
instatement of dismissed employee and backpay in adjudica-
ti
on of unfair-labor-practices claim under the National Labor
Relations Act); Phillips v. Commissioner, 283 U. S. 589, 591–
592 (1931) (defciency assessments for unpaid taxes); Lloyd
Sabaudo Societa Anonima per Azioni v. Elting, 287 U. S.
329, 334–335 (1932) (fnes 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); Passa-
vant v. United States, 148 U. S. 214, 215–216, 220 (1893) (pen-
alty 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 administra-
tive imposition of civil penalties or fnes, 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 Roofng. That was the last time this
Court considered a public-rights case where the constitution-
ality 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.
In Atlas Roofng, the Court explained how Congress iden-
tifed a national problem, concluded that existing legal reme-
dies were inadequate to address it, and then created a new
statutory scheme that endorsed Executive in-house enforce-
ment as a solution. Specifcally, Congress found “that work-
related deaths and injuries had become a `drastic' national
problem,” and that existing causes of action, including tort
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
179
Sotomayor, J., dissenting
actions for negligence and wrongful death, did not ade-
quately
“protect the employee population from death and in-
jury 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 Occupa-
tional Safety and Health Review Commission to impose civil
penalties on employers maintaining unsafe working condi-
tions, 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 chal-
lenged the constitutionality of the statute's enforcement pro-
cedures. 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 frst instance. See id., at 450–455.
In light of this “history and our cases,” the Court concluded
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.
“This is the case even if the Seventh Amendment would have
required a jury where the adjudication of those rights is as-
signed to a federal court of law.” Id., at 455; see id., at
461, n. 16.
Page Proof Pending Publication

180 SEC
v. JARKESY
Sotomayor, J., dissenting
The “new rule” and “legally unsound principle” that the
major
ity accuses this dissent of “unfurl[ing]” today, ante,
at 131, n. 2, is the one that this Court declared “ `settled
judicial construction' . . . `from the beginning ' ”: “[T]he Gov-
ernment could commit the enforcement of statutes and the
imposition and collection of fnes . . . for administrative en-
forcement, without judicial trials,” even if the same action
would have required a jury trial if committed to an Article
III court. Atlas Roo fing, 430 U. S., at 460 (collecting
cases); accord, Elting, 287 U. S., at 334 (Congress “may law-
fully impose appropriate obligations, sanction their enforce-
ment by reasonable money penalties, and invest in adminis-
trative offcials the power to impose and enforce them”);
Stranahan, 214 U. S., at 339 (Congress may “impose appro-
priate obligations and sanction their enforcement by reason-
able money penalties, giving to executive offcers 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 applica-
tion of Atlas Roofng and a long line of this Court's prece-
dents. The constitutional question is indistinguishable.
The majority instead wishes away Atlas Roofng by burying
it at the end of its opinion and minimizing the unbroken line
of cases on which Atlas Roofng relied. That approach to
precedent signifcantly undermines this Court's commitment
to stare decisis and the rule of law.
This case may involve a different statute from Atlas
Roofng, but the schemes are remarkably similar. Here, just
as in Atlas Roofng, Congress identifed 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 mar-
ket that contributed to the Great Depression of the 1930s.
See ante, at 115. The inadequate remedies were the then-
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
181
Sotomayor, J., dissenting
existing state statutory and common-law fraud causes of
ac
tion. 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 Invest-
ment Advisers Act of 1940. See ante, at 115–116. In par-
ticular, Congress enacted these securities laws to ensure
“full disclosure” and promote ethical business practices “in
the securities industry,” SEC v. Capital Gains Research Bu-
reau, 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 Roofng. 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 116. Critically,
federal-securities laws do not require proof of actual reliance
on an investor's misrepresentations or that an “investor has
actually suffered fnancial loss.” Ante, at 118; 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 Roofng, 430
U. S., at 445 (OSHA remedies “exis[t] whether or not an em-
ployee is 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 Roofng, Congress em-
powered the Government to institute administrative enforce-
ment proceedings to adjudicate potential violations of federal
law and impose civil penalties on a private party for those
Page Proof Pending Publication

182 SEC
v. JARKESY
Sotomayor, J., dissenting
violations, all while making the fnal 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 pub-
lic 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 Govern-
ment'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 Roofng 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 “supply-
ing speedy and expert resolutions of the issues involved.”
Id., at 450, 461. In a world where precedent means some-
thing, 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 adjudi-
cation had been so settled that it become an undisputable
rea lity of how “our Gover nment has ac tua l ly 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 Roofng. The majority takes a
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
183
Sotomayor, J., dissenting
wrecking ball to this settled law and stable government
prac
tice. To do so, it misreads this Court's precedents, ig-
nores those that do not suit its thesis, and advances distinc-
tions 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 183–187). Unable to ex-
plain that doctrine, the majority effectively ignores the Arti-
cle III threshold question to focus instead on two Seventh
Amendment cases: Tull v. United States, 481 U. S. 412 (1987),
and Granfnanciera, 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 prece-
dent. See Part III–B–1 (infra, at 188–190) (discussing
Tull); Part III–B–2 (infra, at 190–195) (discussing Granf-
nanciera). The majority and the concurrence then predict-
ably fail to distinguish Atlas Roofng, which resolved the
Seventh Amendment question for cases like this one impli-
cating that critical fact. See Part III–C (infra, at 195–197).
A
To start, it is almost impossible to discern how the major-
ity defnes a public right and whether its view of the doctrine
is consistent with this Court's public-rights cases. The ma-
jority 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 128–130, and
that Atlas Roofng involved OSHA and not “civil penalty
suits for fraud,” ante, at 136.
6
Other times, the majority
highlights a particular practice predating the founding, such
6
The majority also cites cases involving “relations with Indian tribes,
the administration of public lands, and the granting of public benefts such
as payments to veterans, pensions, and patent rights.” Ante, at 130 (cita-
tions omitted).

184 SEC
v. JARKESY
Sotomayor, J., dissenting
as the “unbroken tradition” in Murray's Lessee of executive
o
fficials issuing warrants of distress to collect revenue.
Ante, at 128; see also ante, at 153 (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 Roofng. How does the requirement of a histori-
cal practice dating back to the founding, or “fow[ing] from
centuries-old rules,” ante, at 131, account for the broad uni-
verse of public-rights cases in the United States Reports?
The majority does not say.
The majority's only other theory fares no better. The ma-
jority seems to suggest that a common thread underlying
these cases is that “the political branches had traditionally
held exclusive power over th[ese] feld[s] and had exercised
it.” Ante, at 130. To the extent the majority thinks this is
a distinction, it fails for at least two reasons.
First, Atlas Roofng expressly rejected the argument that
the public-rights doctrine is limited to particular exercises
of congressional power. The employers in Atlas Roofng ar-
gued “that cases such as Murray's Lessee, Elting, [Strana-
han], Phillips, and Helvering all deal with the exercise of
sovereign powers that are inherently in the exclusive domain
of the Federal Government and critical to its very exist-
ence—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 pow-
ers 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 enact-
ing [OSHA].” Ibid. The Court rejected the employers'
argument, explaining that nothing in those cases turned
those particular exercises of the Government's authority.
Page Proof Pending Publication

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
185
Sotomayor, J., dissenting
See id., at 456–457; cf. Crowell, 285 U. S., at 51 (offering a
l
ist 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 Roofng had not explicitly rejected
the proposed distinction here, the majority cannot reconcile
its restrictive view of the public-rights doctrine with Atlas
Roofng and other precedents. For example, it is unclear
how OSHA, or the National Labor Relations Act at issue
in Jones & Laughlin, would ft the majority's view of the
public-rights doctrine, or why the exercise of interstate-
commerce power to enact those statutes would be any differ-
ent from the exercise of that same power to enact the
federal-securities laws at issue here. See Atlas Roofng, 430
U. S., at 457 (“It is also apparent that Jones & Laughlin,
Pernell, and Curtis are not amenable to the limitations sug-
gested by [the employers]”).
The majority's description of the doctrine also fails to ac-
count for public rights that do not belong to the Federal Gov-
ernment in its sovereign capacity. See Granfnanciera, 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 confnement of public rights to that
heartland. See ibid. (“[W]e [have] rejected the 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 reg-
ulatory 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 inves-
tor'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

Page Proof Pending Publication
186 SEC
v. JARKESY
Sotomayor, J., dissenting
among par ticipants i n the Env ironment a l Protec ti on
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 par-
ties, 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 pro-
vide an incomplete and unprincipled account of the doctrine.
Haaland v. Brackeen, 599 U. S. 255, 279 (2023). The major-
ity references, but does not explain, “distinctions our cases
have drawn,” ante, at 131, n. 2, also cherry-picking some
cases and ignoring others. Indeed, in lieu of a coherent the-
ory, all the majority has to offer is a list of fve “historic
categories of adjudications [that] fall within the exception,”
ante, at 128–130, 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 136–137. The majority ig-
nores 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 appli-
cation of the doctrine.” Ante, at 131.
7
The majority also attacks a strawman when it asserts that
“precedents foreclose th[e] argument” that the public-rights
doctrine “applies whenever a statute increases governmental
effciency.” Ante, at 140; see also ante, at 158–159 (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
7
Among other things, the concurrence accuses this dissent of behaving
like a “picky child at the dinner table.” Ante, at 160 (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.

Page Proof Pending Publication
Cite
as: 603 U. S. 109 (2024)
187
Sotomayor, J., dissenting
makes them “rights of the public—that is, rights pertaining
to
claims brought by or against the United States.” Gran-
fnanciera, 492 U. S., at 68–69 (opinion of Scalia, J.).
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 Roofng or the relevant
public-rights cases, the majority instead purports to follow
Tull and Granfnanciera. The former involved a suit in
federal court and the latter involved a dispute between pri-
vate 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 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 be-
longing 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 Granfnanciera
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 statu-
tory cause of action and a common-law analogue, the major-
ity elides the critical distinction between those cases and this
one: Whether Congress assigned the Government's sover-
eign rights to civil penalties to a non-Article III factfnder
for adjudication.

188 SEC
v. JARKESY
Sotomayor, J., dissenting
1
The
majority baffingly proclaims that “the remedy is all
but dispositive” in this case, ante, at 123, ignoring that Atlas
Roofng and countless precedents before it rejected that
proposition. Not content to take just a page from the em-
ployers' challenge in Atlas Roofng, the majority has taken
their whole brief, resuscitating yet another theory that this
Court has long foreclosed. The employers in Atlas Roofng
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 Govern-
ment'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 Govern-
ment in its sovereign capacity. Id., at 450–455 (collecting
cases).
As discussed above, this Court has long endorsed statu-
tory schemes authorizing agency adjudicators to fnd viola-
tions and award civil penalties to the Government. See
supra, at 175–178. Long before Atlas Roofng, this Court
held that the Constitution permits Congress to enact statu-
tory obligations and then “sanction their enforcement by rea-
sonable money penalties” by government offcials “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 ma-
jority relies almost entirely on Tull, which held that statu-
tory claims for civil penalties were “a type of remedy at com-
mon law” that entitled a defendant to a jury trial. 481 U. S.,
at 422; see id., at 425. Critically, however, the Tull Court's
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
189
Sotomayor, J., dissenting
analysis took place in an entirely different context: federal
cour
t. See ante, at 122 (“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 Roofng and other
cases involving non-Article III adjudication of Government
claims in the frst instance. Rather, Tull stands for the un-
remarkable 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 deter-
mine 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 Roofng and
its predecessors could not have been clearer on this point:
Congress can assign the enforcement of a statutory obliga-
tion for in-house adjudication to executive offcials, “even if
the Seventh Amendment would have required a jury where
the adjudication of those rights is assigned to a federal court
of law instead of an administrative agency.” 430 U. S., at
455. Although “the Government could commit the enforce-
ment of statutes and the imposition and collection of fnes 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 adminis-
trative 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 in-
volved a claim in federal court, to overrule silently more than
a century of case law involving non-Article III adjudications
of the Government's rights to civil penalties for statutory
Page Proof Pending Publication

Page Proof Pending Publication
190 SEC
v. JARKESY
Sotomayor, J., dissenting
violations. Of course, Tull did no such thing. Tull even
reaffr
med Atlas Roofng by emphasizing that the Seventh
Amendment depends on the forum, not just the remedy, be-
cause it “is not applicable to administrative proceedings.”
481 U. S., at 418, n. 4 (citing Atlas Roofng, 430 U. S., at 454;
Pernell, 416 U. S., at 383). For the majority to pretend other-
wise is wishful thinking at best.
2
The majority next argues that the “close relationship” be-
tween the federal-securities laws and common-law fraud
“confrms that this action is `legal in nature,' ” and entitles
respondents to a jury trial. Ante, at 126. That argument
does not fare any better than the argument on remedy.
Again, the majority bends inapposite case law to an illogical
thesis. Granfnanciera, on which the majority relies to
make its cause-of-action argument, set forth the public-
rights analysis only for “disputes to which the Federal Gov-
ernment 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 Granfnanciera 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 as-
signing their resolution to a [non-Article III] forum in which
jury trials are unavailable.” Id., at 52 (citing Atlas Roofng,
430 U. S., at 450–461).
8
8
The majority leaves open the possibility that Gran fnanciera might
have overr u led At l as Ro o fing. See an te, at 136. That suggesti on
strains credulity. By my count, Gran fnanciera favorably cites to Atlas
Roofng 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 reaffrmed the defnition of public rights from Atlas Roofng, declar-
ing that the Court “adhere[d] to that general teaching . . . in Atlas
Roofng.” 492 U. S., at 51. The majority's only response is to say that
Justice White thought Gran fnanciera may have overruled Atlas Roofng.
See ante, at 136, n. 3; see also ante, at 157 (Gorsuch, J., concurring). That

Cite
as: 603 U. S. 109 (2024)
191
Sotomayor, J., dissenting
The Court held in Granfnanciera 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 convey-
ance were traditionally available at common law. See id., at
43–49. That did not resolve the case, however. Unlike in
Tull, the proceeding at issue in Granfnanciera 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.
Granfnanciera explains that there are two ways to iden-
tify 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.” Ibid. (citing Atlas Roofng, 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 173–174. In
these cases, the Court said, Atlas Roofng controls the
public-rights analysis. See Granfnanciera, 492 U. S., at 51,
53. The Court explained that “Congress may effectively sup-
is misleading at best. When Justice White said in his Gran fnanciera
dissent that the Court's opinion in that case could be read as overruling
or limiting portions of several cases, including Atlas Roofng, he was refer-
ring to his understanding that Atlas Roofng also extended to private
disputes. See Gran fnanciera, 492 U. S., at 79–83; see also Tr. of Oral
Arg. 58–59 (Principal Deputy Solicitor General explaining that Justice
White understood “Atlas Roofng 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, Gran fnan-
ciera expressly reaffrmed Atlas Roofng and “adhere[d] to [its] general
teaching.” 492 U. S., at 51.
Page Proof Pending Publication

192 SEC
v. JARKESY
Sotomayor, J., dissenting
plant 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 Roofng, 430 U. S., at 458).
The second kind of public right that Granfnanciera recog-
nized 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 (quot-
ing Thomas, 473 U. S., at 593–594; emphasis added; alter-
ations 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 Arti-
cle III court.” 492 U. S., at 54–55 (emphasis added). Once
in federal court, “[i]f the right is legal in nature, then it car-
ries with it the Seventh Amendment's guarantee of a jury
trial.” Id., at 55.
Because Granfnanciera did not involve a statutory right
that belonged to the Government in its sovereign capacity,
Atlas Roofng did not control the outcome. Instead, the
Cour t appl ied the pr ivate-disputes test to deter mi ne
whether fraudulent-conveyance “actions were `closely inter-
twined' with the bankruptcy regime.” Ante, at 133 (quoting
Granfnanciera, 492 U. S., at 54). The Court held that the
fraudulent-conveyance actions “were not inseparable from
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
193
Sotomayor, J., dissenting
the bankruptcy process,” and thus the public-rights excep-
ti
on did not apply. Ante, at 134 (citing Granfnanciera, 492
U. S., at 54, 56).
The majority brushes aside this critical distinction be-
tween Atlas Roofng and Granfnanciera 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 . . . suffcient' by itself
to trigger the exception.” Ante, at 135 (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
the substance” of the claim. Ante, at 134.
By no means, though, does this case involve a “purely taxo-
nomic change.” Granfnanciera, 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 180–181.
10
Perhaps most im-
9
Indeed, “the public-rights doctrine does not extend to any criminal
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.
10
The 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
Page Proof Pending Publication

194 SEC
v. JARKESY
Sotomayor, J., dissenting
portantly, Congress created a new right unknown to the com-
mon
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 182. It seeks to protect the integrity
of the securities market as a whole through the imposition
of new and distinct remedies like civil penalties and orders
barring violators from holding certain positions and perform-
ing 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 Cu-
riae 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 enforce-
ment within the SEC. Ante, at 135.
The majority asserts that “Granfnanciera effectively de-
cides this case.” Ante, at 134. That can only be true, though,
if one ignores what Granfnanciera actually says: Its public-
rights analysis of whether an action is closely intertwined
with a federal regulatory program only applies “in cases not
common-law fraud when it enacted federal-securities laws, see ante, at
125–126, this Court has repeatedly disclaimed any suggestion that Con-
gress federalized a common-law fraud claim. See, e. g., Stoneridge Invest-
ment Partners, LLC v. Scientifc-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”).
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
195
Sotomayor, J., dissenting
involving the Federal Government.” 492 U. S., at 54. The
ana
lysis from Atlas Roofng controls where, as here, “ `the
Government is involved in its sovereign capacity under an
otherwise valid statute.' ” 492 U. S., at 51 (quoting Atlas
Roofng, 430 U. S., at 458).
C
Both cases relied on by the majority, Tull and Granfnan-
ciera, reaffrm that Atlas Roofng controls precisely in cir-
cumstances like the ones at issue in this case. That is why
the major ity's late-st age attempt to disti ng uish At l as
Roofng fails. The majority's principal argument that the
OSHA scheme in Atlas Roofng “did not borrow its cause
of action from the common law” and was instead a “self-
consciously novel” scheme that “resembled a detailed build-
ing code,” ante, at 136–137, is fawed on multiple fronts.
First, OSHA's cause of action should be largely irrelevant
under the majority's view that the remedy of civil penalties
is effectively dispositive under Tull. Atlas Roofng, 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 Roofng 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 Roofng and Granfnanciera, it fails to grap-
ple with the fact that this case, like Atlas Roofng and unlike
Granfnanciera, involves the Government acting in its sov-
ereign 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 common-law fraud
is materially indistinguishable from the relationship between
OSHA and the common-law torts of wrongful death and
Page Proof Pending Publication

Page Proof Pending Publication
196 SEC
v. JARKESY
Sotomayor, J., dissenting
negligence. Unlike their common-law comparators, neither
st
atute requires actionable harm to an individual. See
supra, at 181. 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 137. 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 specifc and ex-
ceedingly detailed requirements implementing the statute's
disclosure and antifraud provisi ons. See, e. g., 17 CFR
§ 275.206(4)–1(b) (2023) (prohibiting testimonials and en-
dorsements that do not satisfy requirements without meet-
ing complex disclosure requirements); § 275.206(4)–2(a) (pro-
hibiting investment advisers from having custody of client
funds or securities unless specifc requirements are met, in-
cluding qualifcations, notices, and account statements).
The majority further rests on the notion that Congress
drew inspiration from the common law in enacting the anti-
fraud provisions of the federal-securities laws, whereas
OSHA's new statutory duty did not bring any common-law
soil with it. See ante, at 136–137. 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 180–181. 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 dis-
tinguish Atlas Roofng fail. The majority cannot escape the
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 Govern-
ment to bring or adjudicate claims that traced their ancestry to the com-
mon law.” Ante, at 137.

Cite
as: 603 U. S. 109 (2024)
197
Sotomayor, J., dissenting
entrenched principle that a “legal cause of action involves
`publ
ic 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.”
Granfnanciera, 492 U. S., at 53–54.
12
In both Atlas Roof-
ing and this case, a public right exists. In both statutory
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 pro-
12
The 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 159 (quoting
Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 859 (1986)
(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. See id., at
859. 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 Ibid. 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 Govern-
ment as a party, as well as disputes involving the Government in connec-
tion with different exercises of congressional power. Indeed, it was Jus-
tice Brennan who reaffrmed Atlas Roofng in his opinion for the
Gran fnanciera Court and explained that a public right includes, at a mini-
mum, a statutory right that “belongs to [o]r exists against the Federal
Government.” 492 U. S., at 53–54.
Page Proof Pending Publication

198 SEC
v. JARKESY
Sotomayor, J., dissenting
motes the evenhanded, predictable, and consistent develop-
ment
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 specia l justificati on. ' ” 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 doctrine.
Less uncertain, however, are the momentous consequences
that fow from the majority's insistence that the Govern-
ment'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., con-
curring in judgment with respect to severability and dissent-
ing in part).
The majority pulls a rug out from under Congress without
even acknowledging that its decision upends over two centu-
13
Precedents should not be so easily discarded based on the views of
some commentators, or on whether or not a particular case is “celebrated.”
Ante, at 138, n. 4. Atlas Roofng and the long line of cases before it are
precedents from this Court entitled to stare decisis effect. Indeed, this
Court has reaffrmed and repeatedly cited Atlas Roofng with approval.
See, e. g., Oil States, 584 U. S., at 344–345; Stern, 564 U. S., at 489–490;
Gran fnanciera, 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).
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
199
Sotomayor, J., dissenting
ries of settled Government practice. The United States, led
by
then-Solicitor General Robert Bork and then-Assistant
Attorney General for the Civil Division Rex Lee, told this
Court in Atlas Roofng that “during the whole of our history,
regulatory fnes 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 consist-
ent rule of government followed for two centuries.” Brief
for Respondents in Atlas Roofng, O. T. 1976, No. 75–746,
etc., pp. 81–82. This Court agreed and upheld that practice,
it seemed, once and for all.
Following this Court's precedents and the recommendation
of the Administrative Conference of the United States, Con-
gress has enacted countless new statutes in the past 50 years
that have empowered federal agencies to impose civil penal-
ties for statutory violations. See 2 P. Verkuil, D. Gifford, C.
Koch, R. Pierce, & J. Lubbers, Administrative Conference of
the United States, Recommendations and Reports, The
Federa l Administrative Judiciary 861, and nn. 350 – 351
(1992). These statutes are sometimes enacted in addition to,
but often instead of, “the traditional civil enforcement stat-
utes that permitted agencies to collect civil money 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 pro-
ceedings. See Tr. of Oral Arg. 78–79 (Principal Deputy So-
licitor General) (recognizing two dozen agencies with admin-
istrative civil-penalty authorities); see also, e. g., 5 U. S. C.
§ 1215(a)(3)(A)( i i) (Mer it Systems Protec ti on Board); 7
U. S. C. §§ 9(10)(C), 13a (Commodity Futures Trading Com-
mission); §§ 499c(a), 586, 2279e(a) (Department of Agricul-
ture); 8 U. S. C. §§ 1324c, 1324d (Department of Justice); 12
U. S. C. §§ 5563(a)(2), (c), (Consumer Financial Protection Bu-
Page Proof Pending Publication

200 SEC
v. JARKESY
Sotomayor, J., dissenting
reau); 16 U. S. C. § 823b(c) (Federal Energy Regulatory Com-
missi
on); 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) (Occupa-
tional 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 Pro-
tection Agency); 39 U. S. C. § 3018(c) (Postal Service); 42
U. S. C. § 3545(f ) (Department of Housing and Urban Devel-
opment); 46 U. S. C. § 41107(a) (Federal Maritime Commis-
sion); 47 U. S. C. § 503(b)(3) (Federal Communications Com-
mission); 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 Bu-
reau); 33 U. S. C. §§ 1319(a), (b), and (g) (Environmental Pro-
tection Agency); supra, at 2 (SEC). Others do not have that
choice. As the above-cited statutes confrm, the Occupa-
tional Safety and Health Review Commission, the Federal
Energy Regulatory Commission, the Federal Mine Safety
and Health Review Commission, the Department of Agricul-
ture, 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 sur-
prised 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
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
201
Sotomayor, J., dissenting
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” pursu-
ant to a statute that is “barely over a decade old,” ante, at
131, n. 2, 136, an assurance that is in signifcant tension with
other par ts of its reasoning. That incredible asser ti on
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 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 Amer-
ican public and its coordinate branches that it knows best.
See, e. g., Collins v. Yellen, 594 U. S. 220, 227 (2021) (conclud-
ing 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 of-
fce”); Seila Law, 591 U. S., at 202–205 (holding that “the
structure of the [Consumer Financial Protection Bureau] vi-
olates the separation of powers” because it was led by a sin-
gle Director removable by the President only “for cause”);
Free Enterprise Fund v. Public Company Accounting Over-
sight Bd., 561 U. S. 477, 483–484, 492 (2010) (holding “that
the dual for-cause limitations on the removal of [Public Com-
pany Accounting Oversight] Board members contravene the
Constitution's separation of powers”). The Court tells Con-
gress 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 de-
Page Proof Pending Publication

202 SEC
v. JARKESY
Sotomayor, J., dissenting
spite the fact that, compared to its political counterparts,
“
the Judiciary possesses an inferior understanding of the re-
alities of administration” and how “political power . . . oper-
ates.” 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 benefts over jury
trials in federal court, such as greater effciency and exper-
tise, transparency and reasoned decisionmaking, as well as
uniformity, predictability, and greater political accountabil-
ity. See, e. g., Brief for Administrative Law Scholars as
Amici Curiae 30–32. Others may believe those benefts are
overstated, and that a federal jury is a better check on gov-
ernment 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) de-
bate 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, “[t]he majority arrogates Congress's policymaking role
to itself.” Garland v. Cargill, 602 U. S. 406, 442 (2024) (So-
tomayor, J., dissenting). It prescribes artifcial 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
frst 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
Page Proof Pending Publication

Cite
as: 603 U. S. 109 (2024)
203
Sotomayor, J., dissenting
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 Federal-
ist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison). Judicial
aggrandizement is as pernicious to the separation of powers
as any aggrandi zi ng ac ti on from either of the pol itica l
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” 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 Con-
stitution 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 frst President un-
derstood this well. In his parting words to the Nation, he
reminded us that a branch of Government arrogating for it-
self the power of another based on perceptions of what, “in
one instance, may be the instrument of good . . . is the cus-
tomary weapon by which free governments are destroyed.”
Farewell Address (1796), in 35 The Writings of George Wash-
ington 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.
Page Proof Pending Publication

Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 109, line 3: “statues” is replaced with “statutes”
p. 115, lines 15 and 16: “statues” is replaced with “statutes”
p. 122, line 16 from bottom: “or” is replaced with “and”
p. 141, line 9: “Security” is replaced with “Securities”
p. 153, line 8 from bottom: “of ” is replaced with “at”
p. 161, last line: “dissenting ” is replaced with “concurring in judgment in
part and dissenting in part”
p. 164, line 22: “25” is replaced with “35”
p. 166, line 14: “(plurality opinion).” is inserted after “564”
p. 179, line 4 from bottom: “That” is replaced with “This”
p. 184, line 11: “Reporter” is replaced with “Reports”
p. 187, line 3: “opinion of ” is inserted before “Scalia”
p. 187, line 3: “concurring in part” is replaced with “).”
p. 188, line 4: “and concurring in judgment” is deleted
p. 199, line 17: “Verkuilm” is replaced with “Verkuil”
p. 199, line 23: “money” is inserted after “civil”
Page Proof Pending Publication