In a new essay, I compare a judicial revolution that is happening with one that is not. Both the change and the status quo are being managed by the current Supreme Court. , When it comes to administrative law, the justices have shown a capacity to revisit everything, but when it comes to securities regulation, they have resisted change. The distinction the Court has drawn is surprising – -securities regulation is a variant of administrative law, and corporate American has complained about the burdens of both.

In securities regulation, the Roberts Court has repeatedly declined opportunities to revisit or reform core doctrines. The Court has reaffirmed the fraud-on-the-market presumption that undergirds Rule 10b-5 class actions, declined to limit insider trading liability (largely overruling an effort to pare it back by the Second Circuit), and preserved a flexible standard for materiality. It has also reaffirmed “scheme liability” under Rule 10b-5’s subsections (a) and (c) after appearing ready to narrow it earlier. The Court has favored adherence to precedent and declined to impose bright-line limits that would have significantly curtailed shareholder litigation or SEC enforcement.

The exceptions to this “as you were” approach to securities regulation lie in aiding and abetting liability, which the court ruled out of securities fraud class actions (but not SEC enforcement), and “foreign cubed” class actions: suits involving claims of foreign investors against foreign issuers to recover losses from purchases on foreign securities exchanges. Now, only class actions based on transactions in the United States or on an American exchange can be litigated in American courts.

By contrast, in administrative law, the Roberts Court has opted for change. The Court has overruled Chevron deference, expanded the Major Questions Doctrine, emphasized “reliance interests” to constrain policy shifts, raised questions about the legitimacy of administrative adjudication, and permitted challenges to long-standing rules by new entrants to an industry. These developments collectively reflect a concern with curbing the modern administrative state, carefully policing the separation of powers, and empowering presidential control over federal regulators.

To be sure, the Court’s approach to separation of powers remedies has for the most part been cautious. In Lucia v. SEC and Free Enterprise Fund v. PCAOB, the Court identified separation of powers problems but offered limited or no relief to the plaintiffs who brought those cases – and fashioned those remedies through a strong presumption of severability, under which instead of invalidating an entire statute, the Court “severs” the problematic provision and leaves the rest in place.

But the Major Questions Doctrine has been used to strike down important programs like the EPA’s Clean Power Plan, OSHA’s vaccine mandate for large employers, a $400 billion student-loan forgiveness scheme, and the CDC’s nationwide moratorium on housing evictions. Administrative reliance was invoked to save the Obama administration’s Deferred Action for Childhood Arrivals after the first Trump administration’s attempt to eliminate it.

Empirical data adds nuance to this doctrinal account. Although the Court has heard far more administrative law cases (176) than securities regulation cases (20) since the start of the Roberts era, the number of administrative law cases is declining while the securities docket remains steady. Administrative law cases are more likely to be controversial – frequently producing 5–4 splits among the justices and multiple dissents – whereas securities regulation cases are often unanimous. Amicus activity also signals perceived importance: The U.S. Chamber of Commerce has filed briefs in a majority of the securities cases and in a significant minority of the administrative law cases, suggesting that corporate interests are deeply engaged in both areas.

In fact, the SEC has been constrained by the Court only when it happens to be the generic-agency defendant in a separation of powers case that has more implications for every agency in the administrative state than it does for the state of securities regulation. That has been true in a number of cases limiting administrative adjudication, for which the SEC has served as the government representative.

What explains the different approaches to securities regulation and administrative law? Securities litigation is in many ways unlike public law litigation. But the most important factor is a different approach to public and private law. When investors and managers conflict, the Court is apparently unsure whether to tweak the law. But when rights against the state are concerned, the Roberts Court has been substantially more inclined to involve itself.

As for the litigation difference,  Rule 10b-5 class actions are brought by investors against managers. To be sure, there is a class action bar of plaintiffs’ lawyers who might not ordinarily seem like trusted enforcers of securities law to a relatively pro-business court. But the Roberts Court apparently feels that the disputes between the owners of a corporation and those who run it need not be reformed.  Instead, the private interests of the stakeholders in securities litigation can be pursued according to the old doctrines.

If the litigation context is different, the most important reason lies in a different approach by the Roberts Court to public and private law. In administrative law, the Court wants to cut back on the independence of administrators and afford new rights to regulated entities aggrieved by their bureaucratic treatment.

The implication is that the Roberts Court is a public law court first and foremost. It worries about the power of the state more than it worries about inefficiencies in the legal architecture governing private disputes. This could change over time – indeed, it has changed over time. The Roberts Court was more cautious about administrative-law innovation before 2016 than it has been since. But making public law cases a priority over private law disputes is an interesting development. At his confirmation, Chief Justice Roberts said that the job of the Supreme Court was relatively passive – it should call “balls and strikes” rather than change the rules of the game.  But the Court appears to take that passive role more seriously when the government is not involved in the dispute.

This post comes to us from Professor David Zaring at the University of Pennsylvania’s Legal Studies Department. It is based on his recent essay, “Securities Regulation and Administrative Law in the Roberts Court,” available here.