CLS Blue Sky Blog

Will the Common Good Guys Come to the Shootout in SEC v. Jarkesy? And Why It Matters

During my recent visit to Columbia Law School, Professor John Coffee shared with me a draft of a short article that later appeared in the New York Law Journal.[1] Coffee’s article assessed the prospects in the U.S. Supreme Court next term of Securities and Exchange Commission v. Jarkesy,[2] a case which raises an important challenge to the power of administrative law judges (ALJs). The Fifth Circuit Court of Appeals held that to allow ALJs to hear securities law disputes violated constitutional rights for a jury trial guaranteed under the Seventh Amendment when the remedy of disgorgement of profits is implicated. The majority opinion reasoned that this remedy could not be distinguished from damages awarded in common law fraud cases, and therefore a jury trial in federal court was required if requested by defendants. In addition, the Fifth Circuit held that delegating the SEC authority to choose between taking cases to ALJs or the courts violated Article I’s grant of “all” legislative power to Congress. Perhaps most importantly, the court held that the congressional limitation of the power to remove ALJs violated Article I’s mandate that the U.S. president has the authority “to take care that the laws be faithfully executed.”[3] Employing an analogy to the famous gunfight at the O.K. Corral, Professor Coffee identifies the two sides and the stakes:

This is a fight between proponents of the Administrative State and the Federalist Society mob, which has been seeking this shootout for some time. If the Federalist Society gang wins, the Administrative State will have taken a crippling (but not quite fatal) wound. Thus, this column asks (with its usual objectivity): Can the SEC, Wyatt Earp, and the other Good Guys win this shootout?[4]

My main comment was that I agreed with Coffee’s analysis and his bottom line that the Supreme Court should uphold the power of the SEC to seek the equitable remedy of disgorgement in ALJ proceedings without allowing a right to a jury trial. The nondelegation and ALJ removal arguments should be rejected too. At the same time, I suggested that the characterization of the fight between the Good Guys and Bad Guys should be expanded to include some other combatants. This blog explains who and why.

The new Bad Guys coming to town are disguised as Good Guys because they say they are for the “common good.” Call them the Common Good Guys.[5] What they advocate, however, is not in fact good. Instead, the Common Good Guys embrace counter-Enlightenment philosophies that threaten to undermine not only administrative agencies but also the legal foundations of our democratic republic.

In a recent book review in Foreign Affairs, Professor Charles King of Georgetown University diagnoses the rise of new versions of illiberal philosophies that purport to explain and provide direction for populist movements arising in the last few decades in the United States and around the world.[6] A trio of recent books, according to King, illustrate these views. The books are Patrick J. Deneen’s Regime Change: Toward a Postliberal Future (2023), Yoram Hazony’s Conservatism: A Rediscovery (2022), and Adrian Vermeule’s Common Good Constitutionalism: Recovering the Classical Legal Tradition (2022).

A blog is not the place to unpack the details of these approaches, but as King points out they share a view that argues against both contemporary conservatives and political liberals as they have been represented, at least until recently, in our two-party system.[7] Two main competing political views trace their origins to two versions of the Enlightenment that inspired the American Revolution. Today’s conservatives tend to follow a moderate Enlightenment tradition favoring strong protections of private property, a mixed government that includes a strong president and Supreme Court, and a prominent role for religion in public life. Today’s liberals stand in a radical Enlightenment tradition that emphasizes civil and human rights, including an expansion of voting rights and fair representation.[8] Again, until recently, what has united these two sides has been a commitment to Enlightenment values of individual freedom, democratic decision-making processes, scientific rationality, and a fidelity to the Constitution and the rule of law – even as differences have raged with respect to such issues as the role of religion and finance in politics.[9]

Following recent waves of populism that reject Enlightenment values in the United States, Russia, Brazil, and elsewhere, self-proclaimed common-good theorists claim, as King points out, that “the real conservative tradition lies in what is sometimes called ‘integralism’ – the weaving of religion, personal morality, national culture, and public policy into a unified order.”[10] This view “imagines a return to a much older order, before the wrong turn of the Enlightenment, the fetishizing of human rights, and the belief in progress – a time when nature, community, and divinity were thought to work as one indivisible whole.”[11]

These theorists see themselves as the Good Guys in the sense that they support a common-good conservatism or a common-good constitutionalism against the evils they perceive in both the libertarianism of contemporary conservatives (understood as embracing individual economic rights) and the agenda of political liberalism (understood as having a broad conception of human and civil rights).[12] The new common-good conservatism diagnoses the Enlightenment itself as the motivating cause of modernity’s ailments. Somewhat chillingly from an historical perspective, they argue in favor of a new elite that will embrace old-fashioned, pre-Enlightenment conceptions of the good to replace the post-World War II consensus that focused on building a pluralist, multicultural, global order and has been, at least for the most part, tolerant of different comprehensive views of the good.[13]

Take, for example, the theory of common-good constitutionalism propounded by Adrian Vermeule of Harvard Law School.[14] Professor Vermeule argues for a recovery of classical legal theory that incorporates values of Roman and Christian canon law as foundational to any true conception of law. He argues against both originalism and progressivism as missing the central justification of the law. Following ancient Roman jurists, he says law should stand for “peace, justice, and abundance,” updated under modern conditions to include “health, safety, and economic security.”[15] Hence he deserves the title of a leading Common Good Guy, and what can be wrong with the law serving these values?

The trouble is that Vermeule leaves out two essential Enlightenment ideas – or at least radically conditions them. One is the idea of rights, and the second is democracy.

Rights, for Vermeule, are not to be taken as seriously as, for example, Ronald Dworkin does.[16] Instead, rights are properly subordinated to higher conceptions of the common good.[17] Vermeule, who takes a Catholic integralist view as the source of his own values, does not see rights as legally or politically central.[18]

The same goes for democracy, which Vermeule sees as a contingent type of government, the value of which depends on whether it acts for the common good.[19] Without batting an eyelash, he says that dictatorship may sometimes be needed instead – adding for good measure a few references to the German legal theorist Carl Schmitt’s “state of exception” as a possible justification.[20] Vermeule does not recognize Schmitt’s role as a legal apologist for the Nazi regime, even as he invokes him as an academic authority for the need to make exceptions to democracy.[21] Not for nothing does one constitutional scholar call common-good constitutionalism “an idea as dangerous as they come.”[22]

Now what does all this have to do with what might seem an ordinary case of federal securities law, raising what might seem a less foundational question of whether hedge fund managers have a right to a jury trial in federal court rather than having their securities fraud cases heard by an ALJ?

Perhaps nothing. Perhaps the Supreme Court will limit itself to deciding the relatively benign question of required procedures, parsing constitutional text and arguments in the standard manner.[23]

Except that recent history suggests that the Court might instead use SEC v. Jarkesy to go much further, as it has done in conjuring new constitutional principles, such as the major questions doctrine in West Virginia v. Environmental Protection Agency, to curtail administrative agency discretion.[24] The Court may well take the facts and issues presented in Jarkesy as an opportunity to reduce the authority of administrative agencies, expand presidential power, or both.

If so, then the Common Good Guys may play a role, even if a hidden one. It is worth noting that the integralist mode of thinking may have an influence on the six sitting Supreme Court Justices who identify as conservative Catholics.[25] This is a highly skewed representation, given that only about 21 percent of the U.S. population identifies as Catholic, and the number of people who identify as Christian of any kind is rapidly declining.[26] That observation, however, is unlikely to deter justices who may see themselves as possessed of ultimate religious truths.[27]

What might the Common Good Guys advocate at the coming Jarkesy shootout?  On one hand, proponents such as Vermeule might support the Court in taking a step back from a further undermining of administrative agency authority. For Vermeule, the common good requires a strong administrative state under modern conditions, as long as it is operating for good results, and it is difficult to contend that the SEC is not acting to promote the values of abundance and economic security countenanced in common-good jurisprudence.[28]

On the other hand, a common-good approach argues that administrative agencies, presumably including ALJs, should be subordinated to presidential authority, and this would counsel treating Jarkesy as an opportunity to expand presidential power and require ALJs to serve more closely under executive removal powers.[29] Common-good constitutionalism “favors a powerful presidency ruling over a powerful bureaucracy.”[30]

Already, the Court has weakened the authority of SEC ALJs at least twice. In Lucia v. Securities and Exchange Commission, the Court held that the ALJs were “officers” rather than “employees” under the Appointment Clauses, and therefore could not be constitutionally appointed by SEC staff rather than the commission itself.[31]Then last April, the Court permitted private plaintiffs (one of them accused in Lucia) to move forward with lawsuits in federal court to challenge the constitutionality of ALJs in various respects.[32] As Justice Kagan described the substantive stakes in the Court’s majority opinion approving jurisdiction:

[These cases claim that] administrative law judges (ALJs) are insufficiently accountable to the President, in violation of separation-of-powers principles. And one respondent attacks as well the combination of prosecutorial and adjudicatory functions in a single agency. The challenges are fundamental, even existential. They maintain in essence that the agencies, as currently structured, are unconstitutional in much of their work.[33]

It seems likely, given this context, that Jarkesy is going to be about much more than a right to a jury trial for hedge fund managers accused of fraud.

Lawyers worry that a broad holding to disempower ALJs will flood the federal courts with cases, and surely this isn’t the best result from an economic efficiency point of view.[34] However, the Common Good Guys will likely support reduction of independent agency power in favor of giving greater oversight powers to the president.[35]

One can rely on the SEC, the solicitor general, and amici briefs to make the case on traditional grounds to hold the line in Jarkesy. My main argument here is that there is another level of engagement. A commitment to traditional legal methods and argument should be reinforced as against the potential intrusion of Common Good Guy arguments that favor a counter-Enlightenment project of undermining Congress and duly constituted administrative agencies in favor of an enhancement of the power of an unchecked, unitary executive over the federal bureaucracy.

This argument is not about whether giving a unitary executive more power over the federal government is a good idea from the perspective of efficiency or how well the bureaucracy works. My focus is on the not-so-hidden agenda for why the Common Good Guys favor greater presidential power.

Their agenda is to unleash doing good in a manner that incorporates Christian religious values and pre-Enlightenment, classical legal principles into government at the highest levels. And an enhanced removal power would allow an unscrupulous president to more easily bring to heel what have been and should continue to be relatively independent administrative agencies like the SEC and, come to think of it, other administrative law enforcement agencies with well-known acronyms such as EPA, IRS, and FBI.

If the Common Good Guys win big in Jarkesy, another large bite will have been taken out of our national legal framework, which has been designed in various ways to withstand abuses of presidential power.[36] Pointing out the enormity of the consequences of enhancing presidential power if the American people return a lawless former president to the White House in 2024 supplies at least an important consideration, if not to six conservative Catholic justices, at least to others in the legal world who may have influence.

If indeed Donald Trump wins election in 2024, and the polls show a significant possibility that he will,[37]then he would not likely commit the same mistakes (from his perspective) of appointing weak and disloyal people to posts such as vice president, secretary of defense, chair of the Joint Chiefs of Staff, and attorney general who did not answer to his will last time around. Trump would need to find smart lawyers to help, and he would probably find them – likely educated and maybe even now teaching at some of the best law schools in the country. One question would then be who would step forward to be Trump’s “star jurists” in roles analogous to Carl Schmitt and others in Nazi Germany?[38] One or more Common Good Guys might well decide to step forward and take the opportunity.

And if the terrible prospect of the fall of the rule of law and constitutional democracy in the United States comes to pass, histories will eventually be written. One question would then be the same one that yielded such sad answers when looking back on the Third Reich.[39] Where were the lawyers? Where were the judges? Where were the law professors? Did they try to stop the destruction of law before it was too late? Or did they, even if unwittingly, aid and abet its deformation?[40]


[1] John C. Coffee, Jr., “SEC v. Jarkesy: Is the Shootout at The OK Corral Finally Here? New York Law Journal (July  12, 2023),

[2] 34 Fd.4th 446 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

[3] 34 Fd.4th at 449-50.

[4] Coffee, op. cit.

[5] “Guys” is not gendered. Lisa Selin Davis, “‘Guys’ isn’t a gendered word anymore. It’s fine to use with everyone.” Washington Post, July 7, 2021,

[6] Charles King, “The Antiliberal Revolution: Reading the Philosophers of the New Right,” Foreign Affairs, June 20, 2023,

[7] As Jonathan Israel observes, the word “liberalism” in historical context has been an “absurdly vague and elastic term” that describes different political movements in confusing ways. Jonathan Israel, The Expanding Blaze: How the American Revolution Ignited the World, 1775-1848 (2017) at 14-15. I use “conservative” and “liberal” here in their common political usage today in the United States, which for the most part overlaps with political identities as Republican and Democrat. In general terms, both mainstream conservative Republicans and liberal Democrats are “liberal” in the sense of a commitment to the primacy of individual rights and democratic decision-making. The new “illiberal” philosophers described by King make no pre-commitments to either rights or democracy, except if they fit with more important background principles of what they see as the common good.

[8] For an expansive account of these two streams of Enlightenment thought focused on the American context, see Israel, op. cit. The distinction between moderate and radical Enlightenment thinking was first introduced by Henry May.  Id. at 11-15, citing Henry F. May, Enlightenment in America (1976). For an application of this insight to contemporary politics, see also Seth David Radwell, American Schism: How the Two Enlightenments Hold the Secret to Healing Our Nation (2021).

[9] For an account of the original bifurcation in the United States of moderate and radical Enlightenment ideas into the two-party system, see Israel, op. cit., at 321-60. Cf. also Gary Kates, “Politics and Economies: The Making of Enlightenment Political Economy,” in A Cultural History of Ideas: The Age of Enlightenment, vol. 4 (2022) (Jack R. Censer ed.; Sophia Rosefeld & Peter T. Struck, series eds.) (tracing Enlightenment conceptions of economics with relevance to political theory).

[10] King, op. cit. See also Edmund Waldstein, “What Is Integralism Today?” Church Life Journal, University of Notre Dame (Oct. 31, 2018), (providing an account of integralism by a contemporary proponent).

[11] King, op. cit.

[12] Patrick J. Deneen, Regime Change: Toward a Postliberal Future at xv (2023) (“common-good conservatism”); Adrian Vermeule, Common Good Constitutionalism: Recovering the Classical Legal Tradition (2022). See also Yoram Hazony, Conservatism: A Rediscovery at 223 (2022) (arguing for “the common good of the nation, or . . . the good of the commonwealth” as ultimate objectives without worrying too much about whether pursuing these objectives would “endanger the freedom of individuals”).

[13] One liberal political theorist arguing for this kind of world order was John Rawls. See John Rawls, The Law of Peoples (1999); see also Lief Wenar, “John Rawls”, The Stanford Encyclopedia of Philosophy (rev. summer 2021 (Edward N. Zalta (ed.), At least one common-good theorist explicitly rejects Rawls as too separatist and encouraging of “disintegration.” Deneen, op. cit., pp. 191-92.

[14] Vermeule, Common Good Constitutionalism, op. cit.

[15] Id. at 1-3, 7-8.

[16] Id. at 6 (“I reject [Dworkin’s] liberal theory of rights, as trumps over collective interests, in favor of a classical theory of rights, as ius [or law in general], founded in the injunction of justice to give every person what is due to them in a political order devoted to the common good.”); id. 41 (claiming that Dworkin had “a bad theory of rights”). For the most influential source of Dworkin’s view of rights as trumps against government power, see Ronald Dworkin, Taking Rights Seriously (1977). It should be taken as axiomatic that the American Revolution and U.S. Constitution both followed a strong, though of course not widely inclusive, view of rights.

[17] Vermeule, Common Good Constitutionalism, op. cit., at 164-67. See also id. at 167 (“Rights, properly understood, are always ordered to the common good and the common good is itself the highest individual interest.”). Cf. also Hazony, op. cit., at 25 (rehearsing Edmund Burke’s argument against political theories of governmental legitimacy based on conceptions of “universal rights”).

[18] See Adrian Vermeule, “Liberalism’s Good and Faithful Servants,” Compact, Feb. 28, 2023,

[19] Vermeule, Common Good Constitutionalism, op. cit., at 47-48. In Vermeule’s words, “democracy, like any other regime-form, is valuable only insofar as it contributes to the common good, and not otherwise.”  Id. at 48. See also Deneen, op. cit., at 151-68 (arguing for use of “Machiavellian means to achieve Aristotelian ends” which the author describes as “Aristopopulism”); Hazony, op. cit., at 331-47 (arguing for “conservative democracy” driven by Judeo-Christian values as against modern versions of democracy informed by “Enlightenment liberalism” which he sees as “the source of the current catastrophe”).

[20] Vermeule, Common Good Constitutionalism, op. cit., at 154-58, nn. 414 & 417.

[21] It’s at least odd to read a reference to one of Schmitt’s articles published in 1943/44 without mention of what else was going on in the background when he was writing it!  Id. at 221 n.367. For a brief account of Schmitt’s direct support of the Nazi state and his close relationships with its leaders, see Bill Scheuerman, “Carl Schmitt and the Nazis,” 23 German Politics & Society 71 (1991) (book review). See also Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (2004); Franz Neumann, Behemoth: The Structure and Practice of National Socialism (1944). Although great efforts were made to hide the complicity of Schmitt and other leading German jurists in the Nazi regime, the historical record is clear that he and others were directly involved. Indeed, Schmitt’s theory of the “state of exception” was critical in justifying the Nazis rise to power following the Reichstag fire. See Ingo Müller, Hitler’s Justice: The Courts of the Third Reich (Deborah Lucas Schneider trans.) (1991) at 10-11, 24, 41-49, 70, 219-30, 235-39. Even prior to Hitler’s rise, Schmitt was “a star jurist” in the Weimar Republic and described personally as “highly cultivated.” Id. at 42, 45. See also V. R. Berghahn, “The Judges Made Good Nazis,” New York Times (book review), Apr. 28, 1991, at 3, (describing Schmitt as “the notorious theoretician of the Führer state”).

In fairness, Professor Vermeule recognizes the problematic connections of Schmitt and Nazism in references in another article that, at the same time, adopts many of Schmitt’s ideas about law, though in the more limited context of administrative law recognizing “emergency” exceptions for executive authority. See Adrian Vermeule, “Our Schmittian Administrative Law,” 122 Harvard Law Review 1095 (2009). At a minimum, the influence of Schmitt’s legal and political theories on “common good constitutionalism” should give one serious pause.

[22] Garrett Epps, ”Common-Good Constitutionalism Is an Idea as Dangerous as They Come,” Atlantic, Apr. 3, 2020,  Professor Epps does not put the point too sharply when he writes that common-good constitutionalism provides “an argument for authoritarian extremism.” Id.

[23] For standard accounts of how this process should work, see, e.g., Kent Greenawalt, Law and Objectivity (1992); Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009).

[24] West Virginia v. EPA, 142 S. Ct. 2587 (2022). As Justice Kagan observed in dissent, the new “major question doctrine” was produced “magically” as a “get-out-of-text-free card” to “[p]revent agencies from doing important work, even though that is what the U.S. Congress directed.” Id. at 2641. As I argue elsewhere, this case joins with others to raise questions about the Supreme Court’s political legitimacy. Eric W. Orts, “Supreme Illegitimacy,” 11 Regulatory Review: In Depth 21 (2022),

[25] Marci A. Hamilton & Leslie C. Griffin, “How Did Six Conservative Catholics Become Supreme Court Justices Together?” Verdict, May 3, 2023, Justice Sotomayor is also Catholic but identifies generally on the liberal side of political spectrum. Not surprisingly, all six conservative Catholic Justices joined to overturn a right to abortion in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022). Anyone think that a religious motive might have been operative? It is also noteworthy that Leo Leonard, the influential judge-picker leading the Federalist Society, is also Catholic and a strong advocate for conservative Catholic political organizations. See Hamilton & Griffin, op. cit. (describing Leo’s background and his role as “the Court’s conservative Catholic Justice-maker”).

[26] Gregory A. Smith, About Three-in-Ten U.S. Adults Are Now Religiously Unaffiliated, Pew Research Center, Dec. 14, 2021, The percentage of the religiously unaffiliated or “nones” has climbed from around 16 percent in 2007 to 29 percent in 2021. Id.

[27] It bears mentioning that American Catholics even of the sort who wear religious frocks rather than judicial robes are much more conservative politically than the Pope. Ruth Graham, “Pope’s Remarks on ‘Reactionary’ U.S. Catholics Rankle, and Resonate,” New York Times, Sept. 1, 2023,

[28] Vermeule, Common Good Constitutionalism, op. cit., at 63, 136-38, 151-54. See also Cass R. Sunstein & Adrian Vermeule, Law & Leviathan: Redeeming the Administrative State (2020).

[29] Vermeule, Common Good Constitutionalism, op. cit., at 13.

[30] Adrian Vermeule, “Beyond Originalism,” Atlantic, Mar. 31, 2020,

[31] 138 S. Ct. 2044 (2018). Arguably, the SEC was simply sloppy in this case, having allowed its staff to appoint the ALJs rather than the commission itself appointing them. As the concurring opinion by Justice Breyer warned, however, some justices have exhibited an appetite for vitiating on constitutional grounds the Administrative Procedure Act’s protection of ALJs from removal unless “for cause.” Id. at 2057-64 (Breyer, J., concurring).

[32] Axon Enterprise., Inc. v. Federal Trade Commission, 598 U.S. 175 (2023)

[33] Id. at 180.

[34] See, e.g., Ghillaine A. Reid, et al., Troutman Pepper, Supreme Court Review May Prove the Death Knell to SEC Administrative Courts, July 5, 2023,

[35] The Court’s invalidation of the structure of the Consumer Financial Protection Bureau indicates that it may be ready to continue in this direction with respect to other more established agencies. Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020). See also Cass R. Sunstein & Adrian Vermeule, “The Unitary Executive: Past, Present, Future,” 2020 Supreme Court Review 83, 117 (2020) (recognizing that Seila Law “left a great deal of room for constitutional challenges to many independent regulatory commissions in their present form” and asserting that “a firm insistence on firm presidential control” provides a “response to contemporary fears and concerns about a powerful, discretion-wielding administrative state”); Cass R. Sunstein & Adrian Vermeule, “Presidential Review: The President’s Statutory Authority over Independent Agencies,” 109 Georgetown Law Journal 637, 639-40 (2021) (observing that Siela Law may “be taken to cast current independent agencies, which wield substantial executive power, into serious constitutional doubt” and advocating for a uniform standard to govern presidential removals based on statutes that “allow the President to discharge heads of independent agencies for ‘inefficiency, neglect of duty, or malfeasance in office’”).

[36] Vermeule rejects “constitutional theory that . . . is obsessed with abuse of power” by national governments. Vermeule, Common Good Constitutionalism, op. cit., at 49-51.

[37] Ronald Brownstein, “Why Biden Just Can’t Shake Trump in the Polls,” Atlantic, Sept. 2, 2023,

[38] See note 21 above.

[39] See Müller, op. cit.

[40] The following observation is relevant in this context:

[W]hat counts as a legal argument – as opposed to a moral, religious, economic, economic, or political one – is the principal component in determining just what law is. The boundaries of the law are set by the boundaries of legal authority, and law speaks as law through its sources. When previously prohibited authorities become options, and when previously optional authorities become mandatory, the nature of legal sources has changed, and with that change comes a transformation of the law itself.

Schauer, op. cit., at 84.

This post comes to us from Eric W. Orts, the Guardsmark Professor of Legal Studies & Business Ethics and professor of management at the Wharton School of the University of Pennsylvania. He was a visiting professor of law at Columbia Law School in the summer of 2023.

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