Economy

Opinion | After Roe, conservative legal tactics will aim for structural reform

By Jason Willick Columnist

May 20, 2022 at 8:31 a.m. EDT

Roe v. Wade has been so central to U.S. judicial politics for so many decades that it is hard to imagine what issue or issues would dominate without it. If the Supreme Court votes to withdraw the federal courts from abortion policy battles, as a leaked opinion by Justice Samuel A. Alito Jr., suggests, the conservative legal movement will have achieved its most high-profile objective — but lost its political raison d’etre.

So where would the movement set its sights next? Reversing rights to contraception or same-sex marriage, as some fear? That’s highly unlikely, as Yale Law School’s Akhil Amar has cogently explained. The court’s controversial abortion precedents are uniquely vulnerable to constitutional attack. Most justices have no interest in pressing against a gay-rights consensus that is increasingly deep and broad. And even if they were interested, the legal opportunities would be few and far between.

While the commentariat was fixated on this red herring, conservative appellate judges from the U.S. Court of Appeals for the 5th Circuit (which covers Texas, Mississippi and Louisiana) on Wednesday issued a ruling far more likely to define the next generation of constitutional conflict. The decision in Jarkesy v. Securities and Exchange Commission wasn’t about a culture-war dispute, but the structure of American government itself — and it reflected the conservative legal conviction that a runaway administrative state is a leading threat to American democratic values.

The 5th Circuit’s muscular ruling, arising from a securities fraud case, significantly limits the prerogatives of the SEC. Until now, the SEC could accuse people or companies of financial wrongdoing and determine their responsibility in an internal “administrative proceeding” instead of through a trial in the judicial branch. These proceedings are run by administrative law judges — civil servants who work for the SEC — and the accused do not have the benefit of a jury hearing the case. ... The majority of the three-judge 5th Circuit panel blasted this process from multiple directions. It found, first, that those accused in such SEC fraud actions have the constitutional right to a jury trial. Second, that Congress had unconstitutionally granted the SEC, an executive-branch agency, “legislative” power. And third, that administrative law judges are too difficult for the president to remove.

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Opinion by Jason Willick
Jason Willick writes a regular Washington Post column on legal issues, political ideas and foreign affairs. Before coming to The Post in 2022, he wrote for the Wall Street Journal and the American Interest. Twitter https://twitter.com/jawillick