Jarkesy Should Not Have Been So Easy For Justice Barrett

There are tensions between Jarkesy, CFPB, and Vidal.

Justice Barrett has explained that she writes separately when she has the need to articulate some differences with the majority opinion. I previously wrote that Justice Barrett should have written separately in Loper Bright, to explain her views on stare decisis and tradition. Chevron has been on the books for nearly half a century, and has become a settled practice in Congress, in the Executive Branch, and in the lower courts–basically everywhere except the Supreme Court. This would seem to to be the sort of thing Justice Barrett would have concerns about jettisoning, rather than Kisorizing, but she remained mum.

I have similar thoughts about Jarkesy. This case was screaming for a Barrett concurrence. Why? There are tensions between Jarksey and some of Barrett's prior writings and joins about "tradition" or settled practice. 

In Jarkesy, Justice Sotomayor's dissent observes that there is nearly a century of practice in which agencies have adjudicated civil penalties "in house," rather than in federal court. This longstanding practice should be entitled to some weight, no? And Sotomayor cites Justice Barrett's Vidal concurrence, as well as Justice Kagan's CFPB concurrence, which Justice Barrett joined:

This Court's longstanding precedent and established government practice uniformly support the constitutionality of administrative schemes like the SEC's: agency adjudications of statutory claims for civil penalties brought by the Government in its sovereign capacity. In assessing the constitutionality of such adjudications, the political branches' "'[l]ong settled and established practice,'" which this Court has upheld and reaffirmed timeand again, is entitled to "'great weight.'" Chiafalo v. Washington (2020) (quoting The Pocket Veto Case (1929)); accord, Vidal v. Elster (2024) (BARRETT, J., concurring in part); id., at 330 (SOTOMAYOR, J., concurring in judgment); Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd. (2024) (KAGAN, J., concurring).

Sotomayor repeats this theme later in her Jarkesy dissent:

The practice of assigning the Government's right to civil penalties for statutory violations to non-Article III adjudication had been so settled that it become an undisputable reality of how "our Government has actually worked." Consumer Financial Protection Bureau, 601 U. S., at 445 (KAGAN, J., concurring). That is why the Court has had no cause to address this kind of constitutional challenge since its unanimous decision in Atlas Roofing. The majority takes a wrecking ball to this settled law and stable government practice. To do so, it misreads this Court's precedents, ignores those that do not suit its thesis, and advances distinctions created from whole cloth

Where is Justice Barrett, and perhaps Justice Kavanaugh, on practice and tradition? Sotomayor lobbed a missile right at the majority, which was not returned. Of course Justice Barrett is under no obligation to respond, but when she fails to, it calls into question how seriously she defends the lines she drew in Vidal and CFPB.

Justice Sotomayor takes another shot at Justice Barrett, concerning Brackeen:

Even accepting the majority's public-rights-are-confusing defense, its "strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law," but to provide an incomplete and unprincipled account of the doctrine. Haaland v. Brackeen (2023).

In Brackeen, and other cases, Justice Barrett has demanded that litigants put forward a "theory" of how to rationalize some new position with an entire body of law. And Barrett declines to move forward when there are too many uncertainties. Some praise this caution. I've criticized this approach as being far too fastidious. Indeed, I've questioned whether Barrett would have joined the Lopez majority, given the uncertainty that decision created. But Chief Justice Roberts's Jarksey decision threw caution to the wind. He basically hurled a grenade at in-house adjudication at many administrative agencies, just waiting for defendants to pull the pin. Having a theory of where this decision leads would seem to useful. Is this ruling limited to the SEC, since it only changed practice in 2010? Or would this decision extend to OSHA and the NLRA. But the majority sees no need to offer any. Indeed, it leaves Atlas Roofing hanging off a shingle.

Again, where is Justice Barrett on the "theory"? Does she have a response? She is under no obligation to write separately, but her failure to write separately suggests she is not really committed to the ironclad "theory" principle she asserted in Brackeen and other cases. And if she doesn't really care about those principles, then maybe the lawyers in Brackeen should not have been faulted for failing to anticipate all of the questions Justice Barrett had.

This passage from Justice Sotomayor is directed right at Justice Barrett, and perhaps Justice Kavanaugh:

Against this backdrop, our coequal branches will be surprised to learn that the rule they thought long settled, and which remained unchallenged for half a century, is one that, according to the majority and the concurrence, my dissent just announced today. Unfortunately, that mistaken view means that the constitutionality of hundreds of statutes may now be in peril, and dozens of agencies could be stripped of their power to enforce laws enacted by Congress.

But once again, silence from Justice Barrett.

Like with Loper Bright, I think Barrett's Jarkesy join was very difficult. It stands in tension with some of the musings from her recent decisions. And rather than trying to reconcile things, she remained silent.

***

I realize I am one of Justice Barrett's most vocal critics on the right, but I think most people do not understand why I do what I do. My purpose here is not simply to criticize the Justice for the sake of criticism, or to be mean. Rather, my commentary has a clear purpose, which I am quite transparent about: by pointing out mistakes of the past, perhaps they will not recur.

I'll use a simple example. This term, the Court decided Jarkesy, CFPB, and Vidal. It should have been obvious to Justice Barrett that joining Justice Kagan's CFPB concurrence, and causing such a fragmentation in Vidal, would put her in a tough spot with Jarkesy. Justice Barrett could have (1) written a concurrence in Jarksey to reconcile these threads or (2) not joined Justice Kagan's CFPB concurrence or (3) dissented in Jarkesy. Instead, she took actions that were internally inconsistent: she joined the CFPB concurrence, joined the Jarkesy majority, and did not write separately in Jarkesy. She continues to reinforce my impression that she is figuring things out as she goes along. Each case is a new day–even for three significant cases decided about a month apart. 

With Justice Barrett I see a person whose jurisprudence is still a work-in-progress. No one, not even Justice Barrett, knows where it is headed. It is a fascinating thing to watch her think things through out-loud. If this was some sort of reality show, I'd tune in! But the thought that President Trump nominated to the Supreme Court someone with so many uncertainties proves we learned nothing from "No more Souters." The "architects" admitted as such that Barrett didn't have the record on paper.

The other two Trump judges are different. What you see is what you get. With Justice Gorsuch, I don't think I've ever seen a Justice more confident that he is correct. He knows exactly what he is going to do, and that is the only possible course of action. That approach is solid 90% of the time, unless we get an issue like Bostock or McGirt. And Justice Kavanaugh also knows what he wants to accomplish, though he signals some open-mindedness with questions at oral argument and preening concurrences (though we had fewer of these missives this term, thankfully). But with Barrett, her limited tenure on the Seventh Circuit, and her limited productivity in the academy, has left gaping holes in what could be called a jurisprudence. She is learning on the job.

Given this state of things, Justice Barrett will be influenced by one side or the other. People on the right, fearful of criticizing their own, bite their tongue on Justice Barrett. Look at how the conservative house organs tiptoe around Barrett's surprising moves. And right-of-center law professors, who tend as a whole to be quite moderate, praise Justice Barrett's moderation. Those on the left, from Justice Kagan to liberal podcast hosts, see Justice Barrett as an asset–someone who can be shaped and formed to serve their goals. To continue the reality show theme–and we know Justice Jackson is a Survivor "superfan"–the Justices are not here to "make friends." Every entreaty from Justices Sotomayor and Kagan should be viewed with a jaundiced lens as a means to gather another vote. I realize the Justices have to parrot the "we are collegial" line to the press, but they have to know that the goal of SCOTUS, like Survivor, is to outwit, outplay, outlast.

If all Justice Barrett is hearing is praise from liberals, her trajectory will slope leftward. I see myself, however unpopular, as the counter. And I think I speak for something of a silent majority of conservatives. Trust me, they're starting to get nervous, and are experiencing buyer's remorse. It's not just about Murthy. Her votes across the board are being noticed–especially the cert denials where she would be the fourth vote. Did anyone else notice there were zero religious liberty cases on the docket this year?

My hope, however naïve, is that these sorts of posts point out the risks for Justice Barrett of joining Justice Kagan's writings. While it may seem convenient at the moment, it will not be helpful down the road. 

I'm sure Justice Barrett would insist that she is not susceptible to influence from anyone. If so, she would be the first person in the history of Article III to have such impermeability. Human nature is a permanent state of being. People like to be liked, and necessarily seek affection from one group or the other. Everyone is subject to different types of influences. We know what makes Roberts, Thomas, Alito, Gorsuch, and Kavanaugh tick. We're still figuring what makes Justice Barrett tick, as she figures herself out.