Judd Littleton, Co-Head of S&C’s Supreme Court and Appellate Practice, previewed the oral argument in the Supreme Court case SEC v. Cochran in Law360, explaining that how the Court rules on the procedural issue in the case cannot necessarily be predicted by looking to Justice Kavanaugh’s past relevant decisions or how particular Justices might view the merits challenges to powers of administrative bodies.
In SEC v. Cochran, the Court will decide whether federal district courts have jurisdiction to consider structural constitutional claims that challenge ongoing SEC administrative proceedings.
Importantly, the question before the court is largely procedural: whether the lawsuit can be brought in federal court while the SEC administrative proceedings are ongoing, rather than in a court of appeals after the SEC proceedings conclude. In 2015 when he was a judge on the D.C. Circuit, then-Judge Kavanaugh joined a decision holding that that such a challenge couldn’t move forward while an administrative proceeding was pending. On the merits, by contrast, Judd pointed to Justice Kavanaugh’s dissent as a circuit judge in Free Enterprise Fund v. PCOAB, in which he wrote that the removal process for Public Company Accounting Oversight Board members was unconstitutional, a position that the Supreme Court later adopted in 2010.
“I think it’s at least worth noting that the procedural question and the merits question on the constitutional issue don't always go hand in hand,” said Judd. “In other words, it’s not always true that if you think that there might be a constitutional problem, you necessarily think that that constitutional problem should be decided by a district court.”
Read the Law360 article, “Kavanaugh May Prove Unlikely SEC Ally In Accountant’s Case.”
Subscribe to stay current on S&C Insights.
Sending an e-mail through this web site does not create an attorney-client relationship. You should not send us any information through this web site that you would want treated confidentially.