After Jarkesy: Toward a Theory of our Independent Judiciary and the Original Model of Adjudication Inside Article III
The independence of the judiciary, rule of law, and trial by jury are hard won treasures of the American legal order. Over the course of centuries, the English people developed the common law and its courts. The power and independence of these courts have faced perennial challenges—from the King’s prerogative tribunals during the seventeenth century to juryless vice-admiralty tribunals in the years preceding the American Revolution. In response to these extra-legal encroachments on the rule of law, the American Founders enacted Article III of the United States Constitution, the Due Process Clause, and the Seventh Amendment. But these constitutional protections face a renewed threat in the rise of the administrative state and its neo-prerogative tribunals.
This article defends the original model of adjudication inside Article III created by Article III, the Due Process Clause, and the Seventh Amendment. Footnote #1 content: A Note on Methodology: This article employs Originalism. “Originalism is usually called a theory of interpretation, a particular way to read a text. Best understood, though, originalism is much more than that. It’s a theory of our law: a particular way to understand where our law comes from, what it requires, and how it can be changed.” Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 HARV. J. L. & PUB. POL’Y 817, 818 (2015). Originalism provides a definition of our law: our law today “happens to consist of” the original law, the founders’ law, plus “lawful changes made along the way.” Id. at 819. This version of Originalism—Original-Law Originalism—holds that “the key standard for interpreting” any provision of the Constitution is that the provision enacts the legal rule “it enacted at the Founding” or time of enactment, plus any lawful changes made along the way. See Stephen E. Sachs, Originalism: Standard and Procedure, 135 HARV. L. REV. 777, 817 (2022); see also ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 144 (1990) (explaining that originalism requires neutrality in the derivation, definition, and application of legal rules). This article applies Original-Law Originalism. It will trace the origins of the original legal rules enacted by Article III, the Due Process Clause, and the Seventh Amendment, the unlawful changes made to those legal rules by the modern administrative state, the current state of the law given SEC v. Jarkesy, 603 U.S. 109 (2024), and four steps the Court should take to restore the original law of Article III, Due Process, and the Seventh Amendment. Article III vests the judicial power of the United States in the federal courts. The judicial power is the power to issue binding judgments pursuant to standing law in cases and controversies within the court’s jurisdiction. Footnote #2 content: William Baude, The Judgment Power, 96 GEO. L. J. 1807, 1811 (2008). Only an exercise of the judicial power can deprive an individual of their private rights to life, liberty, and property. Footnote #3 content: William Baude, Adjudication Outside Article III, 133 HARV. L. REV. 1511, 1522, 1541–47 (2020). Therefore, whether a matter constitutionally requires adjudication inside Article III often turns on the nature of the right in question. Footnote #4 content: Jarkesy, 603 U.S. at 127–28 (explaining “matters concerning private rights may not be removed from Article III courts” because private rights are “made of ‘the stuff of the traditional actions at common law tried by the courts at Westminster in 1789.’”); see also Axon Enter., Inc. v. Fed. Trade Comm’n, 598 U.S. 175, 203 (2023) (Thomas, J., concurring) (“In sum, whether any form of administrative adjudication is constitutionally permissible likely turns on the nature of the right in question. If private rights are at stake, the Constitution likely requires plenary Article III adjudication. Conversely, if privileges or public rights are at stake, Congress likely can foreclose judicial review at will.”). Matters of private right—life, liberty, and property—require an exercise of the judicial power. Footnote #5 content: Caleb Nelson, Adjudication in the Political Branches, 107 COLUM. L. REV. 559, 566–72 (2007). By contrast, matters of public right—government benefits or privileges—do not. Footnote #6 content: Id. In the course of exercising the judicial power, courts must interpret and apply the relevant law. Footnote #7 content: Id.; Marbury v. Madison, 5 U.S. 137, 177 (1803) (“Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”). It is in the process of interpreting the law that a court performs its duty of judicial review to invalidate a law that violates the Constitution. Footnote #8 content: Randy E. Barnett, The Original Meaning of the Judicial Power, 12 SUP. CT. ECON. REV. 115, 138 (2004); see also Federalist 78 (Alexander Hamilton) (“[I]n other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . . and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges ought to be governed by the latter rather than the former.”); Marbury, 5 U.S. at 180 (“Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”). Importantly, Article III vests “one subset of one kind of power — the judicial power of the United States” rather than the judicial power of any other government. Footnote #9 content: Baude, supra note 3, at 1521.
In sum, the judicial power of the United States is the power to bind parties through judgments pursuant to law in cases and controversies where the court has jurisdiction, in the course of which the court has a duty to interpret and apply the law and must nullify any law that violates the Constitution. Only an exercise of the judicial power can authorize a deprivation of private rights—and that power— all of it—is vested in the Article III courts.
The Due Process Clause and the Seventh Amendment work in conjunction with Article III to reinforce the constitutional framework for adjudication inside Article III. The Due Process Clause confirms that before an individual can be deprived of their private rights to life, liberty, or property, the individual must receive judicial process and a judgment from a court of law. Footnote #10 content: See, e.g., Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 YALE L. J. 1672, 1679, 1807 (2012). And once a matter is subject to Article III and due process of law, the Seventh Amendment attaches to suits at common law valued above twenty dollars. A suit is at common law if it is legal in nature, and a suit is legal in nature if it presents a legal right, a wrong, and a legal remedy. Footnote #11 content: Cf. Parsons v. Bedford, 28 U.S. 433, 441, 446–47 (1830) (per Story, J.) (defining suits at common law as those involving legal rights and remedies); SEC v. Jarkesy, 603 U.S. 109, 122–23 (2024) (directing “courts to consider the cause of action” and remedy “[t]o determine whether a suit is legal in nature[.]”); Samuel Bray, Equity, Law and the Seventh Amendment, 100 Tex. L. Rev. 467, 484, 498 (2022) (explaining the distinction between “claims” and “remedies” is “anachronistic”); Jonathan H. Adler, Standing Without Injury, 59 WAKE FOREST L. REV. 1, 22 (2024) (defining a case at law as whenever a legal right has been violated and the law authorizes a legal remedy); see also Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 532–36 (2016) (explaining that the line between law and equity in the context of remedies is valid and useful); Brief of Amicus Curiae Professor Ilan Wurman in Support of Neither Party, Securities and Exchange Commission v. George R. Jarkesy, et al. at 28 (“The key distinction between law and equity is that legal remedies do not require the defendant to do anything: the defendant can merely pay, or if the defendant does not pay, the sheriff can attach defendant’s property and obtain the money sufficient for the judgment. Equitable remedies operate on the body of the defendant—compelling defendants to take action (or inaction).”). The presumption is in favor of trial by jury, except in cases that are in equity or admiralty. Footnote #12 content: Parsons, 28 U.S. at 441, 446–47 (explaining that suits at common law were a catch-all for suits in contradistinction to equity, admiralty, and maritime); Bray, supra note 11, at 484. The original legal rules enacted by these three provisions—Article III, Due Process of Law, and the Seventh Amendment— form the original model for adjudication inside Article III.
Since the turn of the century and rise of the administrative state, the independent judiciary and private rights of the American people face a renewed threat in the return of prerogative tribunals and vice-admiralty jurisdiction in the development of adjudication by administrative agencies. Within the American executive branch, administrative tribunals have emerged that exercise the judicial power—issuing binding legal judgments that deprive individual Americans of their lives, liberties, and properties outside of Article III and its procedural protections with no right to trial by jury.
In SEC v. Jarkesy, the Supreme Court began to pare back these administrative tribunals. The Court heard a challenge to the Securities and Exchange Commission’s juryless, in-house administrative prosecution of George Jarkesy for alleged securities fraud and civil money penalties of $300,000. The Court held a suit prosecuting securities fraud for civil money penalties was a suit at common law to which the right to trial by jury applied. In checking administrative overreach, Chief Justice John Roberts recognized the constitutional injustice of administrative tribunals that “concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch…. the very opposite of the separation of powers that the Constitution demands.” Footnote #13 content: Jarkesy, 603 U.S. at 140.
The Court got the law right in Jarkesy—and it should build on the decision going forward. This article proposes four steps to restore the original legal rules enacted by the Seventh Amendment, Article III, and Due Process of Law.
First, the Seventh Amendment enacts a simple rule: a suit at common law consists of a legal right, a wrong, and a legal remedy. A suit at common law presumptively receives trial by jury, except for cases in equity, admiralty, or maritime. Footnote #14 content: Infra pp. 18-22.
Second, the Court should clarify the distinction between private and public rights. Footnote #15 content: Infra pp. 22-27. Private rights are natural rights that belong to individuals, classically denominated life, liberty, and property. Public rights belong to the public or to the government; paradigmatic examples are welfare benefits or public privileges. Otherwise, public rights are limited to narrowly drawn historic exceptions: the disposition of public lands and public funds, customs, immigration, political decisions within public use takings, and summary mechanisms for collecting tax revenue.
Third, the Court should reverse the order of analysis and first decide if a case concerns private or public rights—which determines if a case requires adjudication inside Article III pursuant to due process of law—and then determine if the suit is legal in nature—which determines whether a jury is required under the Seventh Amendment. Footnote #16 content: Infra pp. 27-29.
Fourth, the Court should more fully define the Article III judicial power. Footnote #17 content: Infra pp. 29-32. The original law of the judicial power is the power to issue binding judgments pursuant to applicable law when the court has jurisdiction, and only an exercise of the judicial power can deprive an individual of life, liberty, or property. It is part and parcel of the judicial power for courts to interpret the law and exercise the duty of judicial review to void any statute that violates the Constitution. The Due Process Clause reinforces that individuals cannot be deprived of their private rights to life, liberty, or property except by judicial process pursuant to a valid exercise of the judicial power according to standing law. If the Court takes these four steps, it will restore the original model of adjudication inside Article III.
This article proceeds in three parts. First, a brief history of the separation of the judicial power from the executive and the development of the American Judiciary. Footnote #18 content: Infra pp. 5-11. This section explores the historic conflicts between the common-law courts and executive tribunals. Second, a summary of SEC v. Jarkesy, which checks the power of a juryless executive tribunal. Footnote #19 content: Infra pp. 11-17. The third section articulates four steps the Supreme Court can take post-Jarkesy to fully restore the original legal rule structure of the independent judiciary and adjudication inside Article III to prevent the administrative adjudication of life, liberty, and property outside of Article III. Footnote #20 content: Infra pp. 17-32.
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