WEBVTT 1 00:00:02.439 --> 00:00:06.919 Welcome to scot Discast, a project of the Federalist Society for Law and Public 2 00:00:06.960 --> 00:00:11.800 Policy Studies. Our contributors joined us from around the country to bring you expert 3 00:00:11.800 --> 00:00:16.679 commentary on US Supreme Court cases as they are argued and the decisions are issued. 4 00:00:16.960 --> 00:00:21.559 The Federalist Society takes no position on particular legal or public policy issues. 5 00:00:21.800 --> 00:00:28.320 All expressions are those of the speaker. Hello, and welcome to scot Discast. 6 00:00:28.480 --> 00:00:32.000 I'm your host, Kyle hammernis On, behalf of the Faculty division of 7 00:00:32.079 --> 00:00:37.600 the Federalist Society. We are here today to discuss sec versus Jarcasy, which 8 00:00:37.640 --> 00:00:41.399 was argued before the Court on November twenty ninth, twenty twenty three. It 9 00:00:41.520 --> 00:00:45.759 is my honor to introduce our guests today, Peggy Little. Peggy is senior 10 00:00:45.799 --> 00:00:50.119 counselor at New Civil Liberties Alliance and is over three decades of experience as a 11 00:00:50.159 --> 00:00:56.479 trial and appellate litigator representing individuals and high profile litigants, including Fortune fifty companies, 12 00:00:56.640 --> 00:01:02.119 financial institutions, public companies, and universe in both state and federal courts, 13 00:01:02.240 --> 00:01:04.640 including the United States Supreme Court. And with that, I'll hand things 14 00:01:04.680 --> 00:01:11.159 over to our guests. Thank you so much. So I'll start with just 15 00:01:11.200 --> 00:01:15.560 a little background, very short because Jarcacy is a notable case, but for 16 00:01:15.640 --> 00:01:21.560 those who don't know, there were three questions certified by the Supreme Court in 17 00:01:21.719 --> 00:01:29.799 Jarcacy. The first question certified was a jury trial question. I can rephrase 18 00:01:29.840 --> 00:01:36.480 it as essentially, can Congress takeaway constitutionally protected jury trial rights by expanding the 19 00:01:36.599 --> 00:01:42.799 jurisdiction of the SEC's in house tribunals to encompass civil fraud prosecutions for penalties. 20 00:01:42.799 --> 00:01:49.040 Then there was a non delegation claim in the case that the Supreme Court certified, 21 00:01:49.120 --> 00:01:57.760 and that focuses on the fact that the SEC has the choice whether to 22 00:01:57.840 --> 00:02:04.239 prosecute defendants in federal court or where by the way, they have the full 23 00:02:04.359 --> 00:02:10.479 range of constitutional protections, including jury trial, or trying defendants before its own 24 00:02:10.520 --> 00:02:17.159 administrative law judges, where a host of constitutional and procedural protections are unavailable, 25 00:02:17.599 --> 00:02:24.360 especially jury trial. Mister Jarcacy had argued in the Fifth Circuit, and the 26 00:02:24.360 --> 00:02:30.439 Fifth Circuit Court of Appeals agreed that by leaving this choice in the prosecuting agencies 27 00:02:30.479 --> 00:02:38.759 to discretion, that was non constitutional delegation by Congress and that Congress must decide 28 00:02:38.759 --> 00:02:46.840 for itself when and whether SEC defendants get jury trial rights and Article three court 29 00:02:47.280 --> 00:02:53.199 access or it must at the very least provide the agency with an intelligible principle 30 00:02:53.240 --> 00:02:58.599 on which to make that decision, which the statute does not do. And 31 00:02:58.719 --> 00:03:04.199 finally, in the case, there was the issue that the SEC administrative law 32 00:03:04.280 --> 00:03:09.599 judges enjoy too many layers of tenure protection. In the case of the SEC 33 00:03:10.479 --> 00:03:17.159 aljs, it's somewhere between two or three layers of tenure protection, depending on 34 00:03:17.159 --> 00:03:22.960 whether you think the commissioners themselves have tenure protection. But in any event, 35 00:03:23.280 --> 00:03:29.120 it's undebatable that there's at least two, and that the Free Enterprise Fund decision 36 00:03:29.520 --> 00:03:36.240 of twenty ten had held that more than one layer of tenure protection violates the 37 00:03:36.280 --> 00:03:43.719 Constitution. A little factual background George Jarknas he was charged with fraud in twenty 38 00:03:43.919 --> 00:03:50.759 thirteen. He went through an agonizing process going through the administrative law proceeding that 39 00:03:50.800 --> 00:03:54.759 I will spare all of you. But when he finally got to the promised 40 00:03:55.400 --> 00:04:06.479 judicial review circuit, Court of Appeals vacated the SEC's al j as affirmed by 41 00:04:06.560 --> 00:04:11.960 the Commission's decision against him, assessing a three hundred thousand dollars penalty in barring 42 00:04:12.080 --> 00:04:17.279 him from the securities industry, and the Fifth Circuit had held, in what 43 00:04:17.439 --> 00:04:23.839 was widely regarded as a landmark decision, that he his jury trial rights had 44 00:04:23.879 --> 00:04:30.560 been violated. That further, the decision leaving the decision of whether to prosecute 45 00:04:30.639 --> 00:04:38.279 him in a court as opposed to an administrative proceeding was an unconstitutional delegation of 46 00:04:38.399 --> 00:04:46.160 legisltiveslateive power to the admiss the enforcement staff of the SEC. And finally, 47 00:04:47.040 --> 00:04:54.000 the Fifth Circuit Court of Appeals held that the removal protections that are enjoyed by 48 00:04:54.040 --> 00:05:02.839 the sec alj is violated. To take care clause at oral arguments, the 49 00:05:02.920 --> 00:05:12.120 jury trial question occupied virtually every aspect of the argument. In a moment, 50 00:05:12.160 --> 00:05:19.480 I will mention how the non delegation issue ties into that. But the questioning 51 00:05:19.639 --> 00:05:27.720 and the argument whether it was of the Solicitor General or of who was in 52 00:05:27.759 --> 00:05:32.839 the case was argued by mister Fletcher or of the respondent the case is the 53 00:05:33.360 --> 00:05:41.720 questions really focused on the jury trial question. So it is really kind of 54 00:05:41.920 --> 00:05:50.120 hard from that argument to reach any sense of how the course court would handle 55 00:05:50.199 --> 00:05:57.079 two out of the three certified questions. Since jury trial occupied the court's time. 56 00:05:59.480 --> 00:06:09.399 The atmosphere in the room I thought was very It was a genuine attempt 57 00:06:09.800 --> 00:06:14.120 by the court to tackle this important jury trial question. I don't think any 58 00:06:14.160 --> 00:06:18.680 of the judges were treating it lightly or as a frivolous question, and they 59 00:06:18.720 --> 00:06:27.120 were really struggling with some of the line drawing sometimes the judges. The justices 60 00:06:27.160 --> 00:06:31.959 were trying to focus on the question of public and private rights, which proved 61 00:06:31.959 --> 00:06:40.360 to be difficult. In fact, Justice Thomas opened asking the UH for definition 62 00:06:40.560 --> 00:06:45.319 of private rights, and we know from his decision in the acts On case 63 00:06:45.560 --> 00:06:54.120 that he felt strongly that this that where people are charged and their private rights 64 00:06:54.120 --> 00:06:58.439 are at stake, they should be in an Article three court and I don't 65 00:06:58.480 --> 00:07:02.879 think that he would back down from that position. I think that was it 66 00:07:02.920 --> 00:07:06.439 was very clear from the argument that would be consistently his view of things. 67 00:07:08.519 --> 00:07:15.959 Other justices were trying to focus on how and if a claim for fraud brought 68 00:07:15.959 --> 00:07:23.800 by the SEC against an individual maps onto what was common law fraud in seventeen 69 00:07:23.920 --> 00:07:29.519 ninety one and bringing claims for damages, and there was a lot of back 70 00:07:29.560 --> 00:07:39.600 and forth on that. The Solicitor General focused a lot on forum and he 71 00:07:39.720 --> 00:07:43.560 came very close, I thought, to making an argument that I think was 72 00:07:43.680 --> 00:07:50.839 unwise, which was essentially, if Congress assigns the claim to another forum, 73 00:07:51.600 --> 00:07:58.720 presumably an administrative tribunal, that decides the question, and I don't think the 74 00:07:58.839 --> 00:08:03.759 justices, even the ones who might not be inclined to affirm the Fifth Circuit 75 00:08:03.759 --> 00:08:09.199 Court of Appeals, were satisfied with that rather circular, simplistic, and self 76 00:08:09.120 --> 00:08:16.199 serving definition of when you do and do not get a jury trial right. 77 00:08:18.519 --> 00:08:26.439 The Justice Jackson was very active from the beginning, and she correctly, in 78 00:08:26.480 --> 00:08:30.120 my view, focused on the fact that the question is not the forum in 79 00:08:30.160 --> 00:08:35.440 which Congress assigns it, because it would be all too easy for Congress to 80 00:08:35.639 --> 00:08:43.720 simply take common law rights that where jury trial protections are expected to be afforded, 81 00:08:43.080 --> 00:08:46.759 and then just assign them to a different form and then extinguish that right. 82 00:08:48.159 --> 00:08:52.559 I think she understood that problem, and so she was focusing on what 83 00:08:52.840 --> 00:08:56.600 the nature of the cause of action was, which I think is the correct 84 00:08:56.679 --> 00:09:05.120 inquiry to make. I think she I think she's likely to perhaps come out 85 00:09:05.159 --> 00:09:09.519 on the other side of the question, but at least she's framing the issue 86 00:09:09.200 --> 00:09:16.720 looking at the type of action that is being brought by the administrative agency as 87 00:09:16.759 --> 00:09:20.799 the correct thing to analyze as to whether there is a jury trial right. 88 00:09:22.679 --> 00:09:28.200 The arguments went on for some time. Each side got approximately an hour and 89 00:09:28.279 --> 00:09:35.440 fifteen minutes. I don't think anyone felt short changed in the argument, and 90 00:09:37.159 --> 00:09:48.799 there was lively questioning right up front. Justice Gorsich and mister Fletcher tangled on 91 00:09:48.840 --> 00:09:52.879 a few occasions, and that was kind of fun to see. In terms 92 00:09:52.919 --> 00:10:01.279 of drawing distinctions. One thing that came out that I I think qualifies my 93 00:10:01.399 --> 00:10:09.279 earlier statement that the argument focused pretty much completely on jurie trial issues is that 94 00:10:09.879 --> 00:10:15.240 Justice bar in particular, but also Justice Kavanaugh in a somewhat different way. 95 00:10:15.799 --> 00:10:24.120 We're very concerned with the ability of the SEC enforcement staff to essentially decide what 96 00:10:24.279 --> 00:10:31.000 quality and brand of justice that you got. And I do think that mister 97 00:10:31.080 --> 00:10:41.279 Jarcracy's council was effective in talking about the very well known deficiencies of the administrative 98 00:10:41.480 --> 00:10:50.320 process in terms of hearsay and rules of evidence. He actually related the fact 99 00:10:50.320 --> 00:10:58.399 that in mister Jarcrasy's own case, the SEC was successfully able to get hearsay 100 00:10:58.480 --> 00:11:05.080 admitted against mister Jarcacy, and then when they tried to admit here say they 101 00:11:05.080 --> 00:11:11.679 were told that the administrative proceedings do not allow that sort of evidence, even 102 00:11:11.679 --> 00:11:16.080 though they were relying upon it themselves. And that's one of the troubling problems. 103 00:11:16.080 --> 00:11:24.360 Everything is asymmetrical in the administrative proceedings. You are rushed into an early 104 00:11:24.480 --> 00:11:30.000 trial when the SEC has had years to investigate and build a record against you. 105 00:11:30.000 --> 00:11:35.679 You're given a document dump that's almost unmanageable, and then expected to prepare 106 00:11:35.720 --> 00:11:41.799 your defense in mere weeks, and then you wait forever and ever for a 107 00:11:41.840 --> 00:11:50.759 decision from the agency. And I think the disparities of justice there were well 108 00:11:50.799 --> 00:11:54.919 set out, and I think of concern to at least some of the justices. 109 00:11:54.559 --> 00:12:01.600 And so when I say that the jury trial issue occupied virtually all of 110 00:12:01.679 --> 00:12:07.960 the argument, then non delegation issue, which comes into play when the question 111 00:12:07.159 --> 00:12:16.480 is, well can the prosecutor in enforcement stat make the unilateral decision of what 112 00:12:16.639 --> 00:12:22.639 brand of justice do you get? I think that was genuinely troubling several of 113 00:12:22.720 --> 00:12:28.279 the justices. And there were also some ardent defenses of the jury trial right 114 00:12:28.360 --> 00:12:41.000 and how important it was the response the respondents did not ask for Atlas Roofing 115 00:12:41.039 --> 00:12:46.320 to be overturned, and that got raised at several points. For example, 116 00:12:46.440 --> 00:12:52.039 Justice Kagan seemed to feel that Atlas, at least in your questioning of respondence 117 00:12:52.080 --> 00:12:58.080 counsel, Atlas pretty much decides the case, and I don't think that's true. 118 00:12:58.039 --> 00:13:03.000 The problem with Atlas is that's a government on one side of the v 119 00:13:03.159 --> 00:13:09.080 and a company on the other side of the question. And the post Atlas 120 00:13:09.080 --> 00:13:15.720 cases which did constrain that ruling, the cases being told and Grand Financier and 121 00:13:15.759 --> 00:13:22.919 all that were one private party versus another private party, where the question of 122 00:13:24.120 --> 00:13:31.120 denying them jury trial rights is a hard one. And the government certainly was 123 00:13:31.240 --> 00:13:35.919 arguing when the government's on one side of the V while that sort of defines 124 00:13:37.759 --> 00:13:41.519 the issue. And I think that's a troubling argument for them to make, 125 00:13:41.559 --> 00:13:48.000 and I don't think the justices were necessarily buying that wholesale and Respondence Council was 126 00:13:48.080 --> 00:13:52.960 able to cite to an early case in seventeen ninety called King versus Well, 127 00:13:54.000 --> 00:14:01.000 I'm forgetting the name of the person prosecuted for fraud, the government bringing a 128 00:14:01.039 --> 00:14:09.279 fraud claim against an individual who had defrauded people, and is that a private 129 00:14:09.120 --> 00:14:15.440 right or at least a claim for fraud kind of law fraud that where a 130 00:14:15.559 --> 00:14:20.200 jury trial right was recognized in seventeen ninety. And I think that is an 131 00:14:20.200 --> 00:14:28.240 effective rebuttal to the argument that was holding some force for at least part of 132 00:14:28.240 --> 00:14:37.080 the argument that will we post Atlas Roofing case and case law really only applies 133 00:14:37.200 --> 00:14:39.519 between private parties, and when the government is on the other side of the 134 00:14:39.600 --> 00:14:46.519 v it is sort of, by definition, a public right. I think 135 00:14:46.519 --> 00:14:56.080 the public private right issue was exposed in this argument as a deeply unsatisfactory way 136 00:14:56.200 --> 00:15:05.919 to resolve these questions. Justice Thomas asked the Solicitor of General for a definition 137 00:15:05.039 --> 00:15:13.879 and got some pretty simplistic responses from the government. And I think the government 138 00:15:13.039 --> 00:15:24.840 was making arguments that were circular and I think not helpful to its case if 139 00:15:24.840 --> 00:15:33.399 you're really taking these questions seriously. So I think one loser in the argument 140 00:15:33.600 --> 00:15:37.240 was this public private rights distinction insofar as it bears on the jury trial question, 141 00:15:37.840 --> 00:15:46.759 and how unsatisfactory that has been over the years. I suppose one question 142 00:15:46.840 --> 00:15:52.399 that might follow from that is is it possible the court would overrule Atlas Rufe. 143 00:15:54.000 --> 00:15:58.480 I think that's unlikely because the respondent did not ask for it, and 144 00:15:58.480 --> 00:16:02.639 that came up a couple of times in the oral argument, and the Court 145 00:16:02.720 --> 00:16:07.480 is certainly not going to be inclined to overrule a precedent of that long standing 146 00:16:08.159 --> 00:16:12.639 when that hasn't even been requested as part of the relief there. On the 147 00:16:12.679 --> 00:16:21.480 other hand, I think anything as possible, and there might be some justices 148 00:16:21.840 --> 00:16:29.360 who are flirting with that possibility. They might wait for a later case that 149 00:16:29.559 --> 00:16:36.159 presents that issue more cleanly to the court, but it is anything as possible. 150 00:16:36.399 --> 00:16:45.720 Certainly. I would say the Court as a whole was wrestling very sincerely 151 00:16:45.080 --> 00:16:51.200 with the jury trial question, and I think they were concerned with the erosion 152 00:16:51.200 --> 00:16:56.240 of jury trial rights. Now, a contrary view did come up, and 153 00:16:56.279 --> 00:16:59.960 that was that, you know, all the world's got bigger, more complicate, 154 00:17:00.039 --> 00:17:03.519 hated, and Congress has so many things on its mind, and it 155 00:17:03.679 --> 00:17:07.319 has, you know, after one financial crisis or another, or one other 156 00:17:08.720 --> 00:17:15.720 you know, public emergency or another, the courts, the Congress may decide 157 00:17:15.759 --> 00:17:19.920 that it needs to set up remedies for these situations that do not overburden the 158 00:17:19.960 --> 00:17:27.519 courts. And that did come up as a consideration that there are so many 159 00:17:29.119 --> 00:17:32.920 things that Congress needs to remedy that you know, we have to be careful 160 00:17:32.960 --> 00:17:38.839 we're not throwing too many claims into Article three courts and jury trials. I 161 00:17:40.480 --> 00:17:45.720 don't think that was an overwriting concern of a majority of the justices, but 162 00:17:45.759 --> 00:17:53.480 it certainly was a subtext that had considerable play the other uh the I guess 163 00:17:53.519 --> 00:17:59.559 I would call that the beginning of what I would call the Bloodgates issue. 164 00:17:59.759 --> 00:18:03.839 You know, how is this going to play across many agencies? You know, 165 00:18:03.160 --> 00:18:11.920 are we opening up a really flood of problems here where Congress will have 166 00:18:11.960 --> 00:18:18.759 to go back and look at agency adjudication schemes that has set up in which 167 00:18:18.400 --> 00:18:25.039 jury trial rights are not permitted, and do they have to like amend the 168 00:18:25.079 --> 00:18:29.000 statutes and all of that. And I think that was a hard and perhaps 169 00:18:29.039 --> 00:18:33.279 not even fair question to pose it argument, because of course that hasn't been 170 00:18:33.400 --> 00:18:41.160 briefed, and we know that these schemes differ from one agency to another. 171 00:18:41.000 --> 00:18:49.759 Some agencies actually allow people to elect to move their case back into court, 172 00:18:51.200 --> 00:18:56.240 which would certainly be a satisfactory solution, and that was mentioned at argument. 173 00:18:56.519 --> 00:19:03.039 But you know, it's very difficult for any of the parties to effectively respond 174 00:19:03.079 --> 00:19:10.319 to that concern when that was not properly briefed. There was some mention of 175 00:19:10.359 --> 00:19:18.920 supplemental briefing in the discussion at argument that got a kind of dutiful response from 176 00:19:18.960 --> 00:19:29.079 the respondent. I doubt that will take place, but it does. It 177 00:19:29.119 --> 00:19:36.000 does suggest that the Court might decide to rule in a fairly narrow fashion so 178 00:19:36.200 --> 00:19:48.839 as not to implicate those concerns. I can't give you a nose count other 179 00:19:48.920 --> 00:19:55.839 than really, from a very rough assessment, I think it is possible that 180 00:19:57.440 --> 00:20:02.960 the Fifth Circuit would be affirmed on one or more of the questions that were 181 00:20:03.000 --> 00:20:07.599 certified. I certainly don't think I came away from the argument feeling that the 182 00:20:07.839 --> 00:20:17.920 Fifth Circuit would be reversed. But it was not an overwhelming sense that the 183 00:20:17.920 --> 00:20:22.119 Fifth Circuit would be affirmed, and certainly not affirmed on all three questions. 184 00:20:23.160 --> 00:20:29.359 The question that I got the least time was the removal questions. Now that 185 00:20:29.400 --> 00:20:36.279 could be for a variety of reasons. If it would be easy to say, 186 00:20:36.279 --> 00:20:41.759 after attending argument today that the Court will only decide the jury question, 187 00:20:41.759 --> 00:20:47.160 because that's really all that was disgusted argument, and I think that's a fallacious 188 00:20:47.759 --> 00:20:52.440 conclusion to reach. And here's why the Court knows how to certify just one 189 00:20:52.519 --> 00:20:56.720 question if it wants to, and it certified all three, and it required 190 00:20:56.759 --> 00:21:02.640 briefing on all three. And it could equally be true that on the for 191 00:21:02.680 --> 00:21:08.440 example, the removal question, which many people whom I've spoken with and who 192 00:21:08.440 --> 00:21:14.400 have reviewed the briefing and were submitted a Mikus brief, many people think that 193 00:21:14.440 --> 00:21:18.720 the removal question is the easiest one, and so it is entirely possible that 194 00:21:19.200 --> 00:21:26.079 the Court has already polled itself and that they feel that Free Enterprise Fund decides 195 00:21:26.160 --> 00:21:30.680 that question. Certainly, Justice Kagan felt that Free Enterprise Fund had decided the 196 00:21:30.759 --> 00:21:38.960 jurisdictional question in the Axon Cochrane case, And as somebody who had briefed the 197 00:21:40.079 --> 00:21:44.200 Cochrane case, I can tell you, I had argued throughout those proceedings that 198 00:21:45.279 --> 00:21:51.119 Free Enterprise Fund not only decided the jurisdictional question but the merits of whether more 199 00:21:51.160 --> 00:21:56.599 than one layer of tenure protection violates the Constitution. So it is entirely possible 200 00:21:56.640 --> 00:22:03.519 the Court has already reached of a straw vote on that, and so there 201 00:22:03.559 --> 00:22:08.680 was no point in addressing that question at oral argument. As to the non 202 00:22:08.720 --> 00:22:17.720 delegation argument, as I say, it arises and meshes with the jury trial 203 00:22:17.880 --> 00:22:26.160 argument because of the difficulty that several of the judges seem to have about when 204 00:22:26.160 --> 00:22:30.440 you do and do not have access to an Article three court, whether or 205 00:22:30.440 --> 00:22:33.839 not it gives you a jury trial. And I think that was troubling several 206 00:22:33.880 --> 00:22:38.680 of the justices. So I would not rule out the Court reaching the non 207 00:22:38.799 --> 00:22:44.359 delegation question, but it did not get a lot of distinctive argument on its 208 00:22:44.359 --> 00:22:53.079 own merits. At the proceedings, the Court seemed most concerned with dealing with 209 00:22:53.119 --> 00:22:59.319 Atlas Roofing, the Grand Financierra Untold decisions, and whether they did or did 210 00:22:59.319 --> 00:23:11.920 not effectively overrule Atlas Roofing. I think the line drawing, as I said 211 00:23:11.920 --> 00:23:17.759 earlier but I will repeat, was kind of all over the place. Public 212 00:23:18.240 --> 00:23:25.119 do you draw the line at the public private distinction? Do you only award 213 00:23:25.319 --> 00:23:30.079 jury trial rights when there's a suit at common law? And I believe it 214 00:23:30.119 --> 00:23:37.279 was. Justice Gorsis pointed out that, of course, the Dictionary definition of 215 00:23:37.359 --> 00:23:45.599 suit at the time the Seventh Amendment was adopted included a proceeding in any tribunal, 216 00:23:45.119 --> 00:23:53.440 and so I think that the suit distinction is an unsatisfactory one. It 217 00:23:53.480 --> 00:23:57.839 was certainly advanced by the Solicitor General. But I don't think it was a 218 00:23:57.839 --> 00:24:07.079 particularly of distinction in which to decide the jury trial question. I said earlier 219 00:24:07.119 --> 00:24:12.319 that the idea that well, it kindass simply puts you in a certain form, 220 00:24:12.400 --> 00:24:17.759 then you lose your jury trial rights. That that didn't seem to carry 221 00:24:17.799 --> 00:24:23.079 a lot of persuasive weight, And I think the decision is probably going to 222 00:24:23.119 --> 00:24:30.599 turn on the right of action, which is I think the correct focus of 223 00:24:30.640 --> 00:24:36.480 the Seventh Amendment jury trial question, and whether or not this was something that 224 00:24:36.960 --> 00:24:44.880 was analogous enough to a common law right of action recognized in seventeen ninety one, 225 00:24:45.359 --> 00:24:52.079 for which penalties could be sought. And there were some interesting hypotheticals offered 226 00:24:52.160 --> 00:24:59.079 by Justice Roberts up front. He said, well, you know, you 227 00:24:59.119 --> 00:25:03.480 have an interstatehighway system. Could kind of say that, at least on our 228 00:25:03.599 --> 00:25:10.400 roads, we want to put all tour claims into a non Article three court 229 00:25:10.799 --> 00:25:15.240 without juries. Same thing with healthcare. We regulate that heavily. Could we 230 00:25:15.279 --> 00:25:19.559 take medical malpractice claims, for example, and do the same thing. We 231 00:25:19.599 --> 00:25:25.839 want to move them into non Article three courts with no juries and bring our 232 00:25:25.920 --> 00:25:32.480 expertise into deciding these. You know, tough questions of medical malpractice, and 233 00:25:32.519 --> 00:25:37.640 we have an interest as the government in reducing healthcare costs, for example. 234 00:25:38.200 --> 00:25:45.559 And so those were some very interesting hypotheticals that suggested to me that the Chief 235 00:25:45.720 --> 00:25:52.839 was thinking carefully about the fact that this public rights private rights distinction can be 236 00:25:52.880 --> 00:25:59.400 taken quite far, and you know, pretty much everything becomes a public right 237 00:26:00.319 --> 00:26:07.400 if the government has any intersection with the issue at hand, and we could 238 00:26:07.400 --> 00:26:14.119 just extinguish all, you know, all claims that are supposed to be hurt 239 00:26:14.119 --> 00:26:18.000 in courts and are supposed to be decided by juries. One thing I found 240 00:26:18.039 --> 00:26:23.720 disappointing was the provision in the Seventh Amendment which focuses on the fact that juris 241 00:26:23.759 --> 00:26:29.759 are supposed to be fact finders, didn't get a lot of play, so 242 00:26:30.279 --> 00:26:34.359 that I think that's something that I wish had a little bit more development, 243 00:26:34.519 --> 00:26:44.359 because I think that when you have fact finding done by an administrative law judge 244 00:26:44.359 --> 00:26:48.359 who is employed by the very agency that is prosecuting you, and then you 245 00:26:48.559 --> 00:26:52.640 have, you know, eventual judicial review that defers to that fact finding, 246 00:26:52.680 --> 00:27:00.599 that's just such a troubling built in structural bias that I wish that had gotten 247 00:27:00.599 --> 00:27:04.000 a little more development at a oral argument, and it did not. But 248 00:27:04.359 --> 00:27:08.200 you know, perhaps that's something the court understands so thoroughly that it didn't need 249 00:27:08.440 --> 00:27:15.240 a lot of questioning on that. I think that's a pretty description of the 250 00:27:15.359 --> 00:27:22.400 general things that were addressed at oral argument. The general atmosphere in the courtroom, 251 00:27:22.440 --> 00:27:27.440 I think was one of sincere engagement. You could see colloquies going back 252 00:27:27.440 --> 00:27:33.079 between the justices. Very often, one justice would take up another justice's line 253 00:27:33.119 --> 00:27:38.319 of questioning I think Justice sort of I or actually ask the Solicitor General to 254 00:27:38.359 --> 00:27:45.400 please answer the chiefs question, and the we're back and forth with You could 255 00:27:45.400 --> 00:27:51.000 see between Justice fhar and Justice Jackson on some of these very tough line drawing 256 00:27:51.119 --> 00:27:56.440 questions. So I think, you know, in terms of a more general 257 00:27:56.519 --> 00:28:03.680 concern about whether the Court is you know, has retreated into factions, I 258 00:28:03.720 --> 00:28:08.920 think what you saw was a very sincere engagement with some very hard questions as 259 00:28:08.920 --> 00:28:15.839 to which the justices, all of them care deeply. Thank you for listening 260 00:28:15.880 --> 00:28:19.079 to this episode of SCO Discast. SCO Discust is a project of the Federalist 261 00:28:19.160 --> 00:28:26.559 Society, not for profit educational organization of conservative and libertarian law students, law 262 00:28:26.599 --> 00:28:30.759 professors, and lawyers founded upon the principles that the state exists to preserve freedom, 263 00:28:32.039 --> 00:28:34.599 that the separation of governmental power is essential to our constitution, and that 264 00:28:34.680 --> 00:28:38.720 it is emphatically the province and duty of the judiciary to say what the law 265 00:28:38.880 --> 00:28:42.519 is, not what it should be. 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