Have you heard of these cases before the Supreme Court? Here’s why they should matter to you

UPDATE: On 5/30/2024, in a win for the First Amendment, the Supreme Court unanimously decided in NRA v. Vullo that government officials cannot pressure or otherwise coerce organizations to terminate certain business relationships when doing so infringes the First Amendment rights of the third party.

This Supreme Court term has been full of high-profile cases. Headlines have covered arguments ranging from social media censorship to credit card fees. Dozens of cases have dominated the news cycle since the justices returned to the bench back in October.

What about the others – the cases that you may have missed?

Here are two low-profile but high-stakes cases that’ll be decided in the next few weeks.

---

First up: Securities and Exchange Commission v. George Jarkesy

Do Americans still have a right to their day in court when federal agencies are the ones bringing the charges?

The Constitution guarantees everyone the right to due process of law before the government can deprive them of their liberty and property. It’s a hallmark of our country. But it’s up for debate.

The Supreme Court will decide a case that tests that very notion in SEC v. Jarkesy. At its core, this case is about the foundational principle of checks and balances enshrined in the Constitution and our nation’s commitment to core principles of justice and fairness.

You’d think that in this country if the federal government wants to prosecute someone, ban him from his chosen occupation, and impose severe civil penalties, it must do so in a fair forum before an impartial judge and a jury of his peers.

But today, many federal agencies like the Securities & Exchange Commission (SEC) prosecute people in their own in-house courts — where the agency is not just the investigator and prosecutor but also the judge of its own cause.

Unsurprisingly, the government overwhelmingly finds in favor of itself.

These agencies also get to make the rules of the game, further stacking the deck in their own favor. In many cases, they have the power to impose knee-buckling monetary penalties, ban people from their chosen occupation, and effectively destroy lives and livelihoods.

This breaks the Constitution’s promise of due process. And it’s what happened to George Jarkesy, a Texas-based investment advisor whom the agency charged with misrepresenting the assets of a fund he ran.

For these reasons, Americans for Prosperity Foundation filed a friend-of-the-court brief urging the Court to put a stop to this and rule that Mr. Jarkesy and all Americans have a right to a fair forum before an impartial federal judge and a right to be tried by a jury of their peers.

Put simply, if a federal agency wants to prosecute people, it can’t trample their rights.

The Supreme Court heard oral argument on February 20^th. A decision is expected before the end of June.

---

Next up: National Rifle Association v. Vullo

If the government doesn’t like your views, can it cancel your insurance?

Tens of millions of Americans support advocacy groups – organizations that work on causes ranging from poverty to animal welfare and everything in between. The First Amendment protects their right to advocate for their issue, whatever it is. The National Rifle Association (NRA) is one of those groups. And the Constitution protects its rights too.

Seems simple, doesn’t it? Not to New York.

Maria Vullo, the former Superintendent of New York’s Department of Financial Services appointed by former Governor Andrew Cuomo, opposed the NRA. Both Vullo and Cuomo were vocal in their opposition to gun rights, and Vullo made clear her desire to use her official power to combat the availability of firearms.

But what could a financial regulator do? It would be unconstitutional to censor them directly. So she looked for an indirect way to shut them up – attacking their ability to do business in New York State.

Like other organizations, NRA carries insurance.

If Vullo had directly prohibited the NRA from obtaining insurance in New York due to its advocacy, that would be a glaring violation of the First Amendment.

So instead, she pressured the insurance carrier to drop coverage. If the NRA could not be covered in New York, that would burden its ability to operate there — driving its speech from the state. And, if New York could do that, it’s just a short logical step to ordering a bank to de-bank its customers, or a credit card company to drop customers.

But leaning on private business to reach a result the state could not compel directly is still a violation of the First Amendment. And it’s an issue the Court has addressed before, holding that “what the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly.”

NRA v. Vullo is the first of two cases before the Court this term in which government officials have used their power as regulators to silence speech they don’t like (the other is the more high-profile set of social media cases: Moody v. NetChoice and NetChoice v. Paxton).

Americans for Prosperity Foundation filed a friend-of-the-court brief urging the Court to squarely reject Vullo’s backdoor approach to silencing protected speech.

The Supreme Court heard oral argument on March 18. A decision is expected before the end of June.

— With commentary from Cindy Crawford and Michael Pepson