On a Supreme Court dominated by six Republican appointees, there isn’t much the Democratic minority can do to affect outcomes — especially in the biggest cases. So one function of oral argument these days is for those Democratic justices to air views that won’t appear in majority opinions.

Justice Elena Kagan reminded us of that Wednesday, with questioning that continued to highlight her position that the court is asserting power that belongs to Congress and is willing to discard precedent in the process. The case, SEC v. Jarkesy, is one of three appeals this term attacking the so-called administrative state that regulates, among other things, the environment and business. The latter is directly implicated here in the case of a hedge fund manager accused of misleading investors. George Jarkesy’s case raises several issues, as MSNBC columnist Jessica Levinson explained:

Thus, the Supreme Court considered three questions Wednesday: whether administrative agencies, like the SEC, can adjudicate certain civil actions that seek monetary damages or whether such cases need to be heard before juries in a district court; whether Congress can allow administrative agencies the option of bringing actions before administrative law judges or district judges under the nondelegation doctrine, which prevents Congress from delegating its legislative power to executive agencies; and whether presidents must be able to remove officials such as administrative law judges at will or whether they can enjoy additional job protections.

How the court resolves the case could affect not only securities enforcement but also how other agencies work — hobbling them being a longtime goal of the conservative legal movement that has worked to assemble the current high court majority. The justices already heard argument this term in a case attacking the Consumer Financial Protection Bureau — which likewise featured Kagan warning about lurking dangers in the case — and in January they’re hearing an attempt to topple the 1984 Chevron precedent that requires deference to agency expertise.

A “problem” with this SEC challenge is that it could be foreclosed by decades-old precedent. But “problem” is in quotes here because a majority of the court can make whatever problems go away that it wants to. Chief Justice John Roberts noted the age of that precedent, saying that “the extent of impact of government agencies on daily life today is enormously more significant than it was 50 years ago.”

Kagan countered that, over the years, “our problems have only gotten more complicated and difficult” and added that “it’s usually Congress that decides how to solve those problems and whether administrative agencies with the kind of expertise that they have are the appropriate way to solve those problems.”

The remark continues the criticism that Kagan has raised previously, such as when she wrote in a dissent in an environmental regulation case that the GOP-controlled court “substitutes its own ideas about policymaking for Congress’s.”

On Wednesday, the Obama appointee told Jarkesy’s lawyer that nobody has had the “chutzpah” to raise the sort of challenge presented here. She also hinted at the majority’s willingness to toss precedent aside, perhaps thinking of the Dobbs ruling that overturned Roe v. Wade last year when she said that “there are precedents that we have that have been eroded over time, that have been changed, that … don’t get a hundred percent of their value 50 years later as they do the moment they were issued.” 

Much of Wednesday’s argument focused on the jury question and suggested a possible ruling on relatively narrow grounds that wouldn’t necessarily blow up the administrative state. Even so, the realistic possibility that the court would entertain such aggressive legal theories is a reflection on the court itself. As in other cases this term, not going as far as the 5th U.S. Circuit Court of Appeals — whose far-reaching decision prompted this case — would only make the Supreme Court less extreme by comparison, rather than reasonable in its own right.

No matter how the court rules in this case and other big ones this term, the written views of the Democratic-appointed justices may largely be confined to dissents. 

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