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Samuel Alito And Ketanji Brown Jackson Trade Barbs In Supreme Court Oral Argument

No love lost here.

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Senate Holds Supreme Court Confirmation Hearings For Ketanji Brown Jackson

Photo by Win McNamee/Getty Images)

Yesterday, the Supreme Court heard oral arguments in the Consumer Financial Protection Bureau’s funding case. Mercifully, a majority of justices do not seem ready to declare the CFPB unconstitutional and launch us into a “judicially induced Great Depression.” But the argument revealed more tension on the High Court.

At issue is the unique funding of the agency, which derives its money directly from the Federal Reserve. Representing the CFPB is U.S. Solicitor General Elizabeth B. Prelogar, who took some pointed questions from Justice Samuel Alito on that point. As reported by Law360:

“So I take it your answer is that is not consistent with any historical practice, but you think, to the extent it is unprecedented, it is unprecedented in a way that is not relevant for present purposes?” the justice asked. Prelogar agreed, contending the unprecedented nature of the CFPB’s funding doesn’t “track the constitutional value.”

But Justice Ketanji Brown Jackson, who emerged as a defender of the agency during questioning, had some pointed follow up:

“Some of the questions that have been asked this morning seem to be requiring you to establish whether or not Congress can do a certain thing … but I thought that the burden was on them to show that Congress can’t set up the agency this way,” Justice Jackson said to Prelogar.

The back and forth continued during Jones Day partner Noel Francisco’s time at the lectern, who represents trade group plaintiffs. With Jackson pushing back:

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Justice Jackson, however, said the trade groups have the burden of showing that Congress’ appropriations authority is limited somewhere in the text of the Constitution, not just because there is no historical pattern.

“It’s not up to us to sort of say, ‘Geez, those things seem problematic,'” she said. “We would have to find a legal source, I would think, in order to agree with [the trade groups] that those limits are actually imposed in Congress’ authority.”

And Alito’s response:

“I don’t think there’s anything unusual about asking counsel in cases that come before us for the limiting principle of the argument that they’re making,” Justice Alito said. “That’s a basic question that we ask. I don’t think it’s a question of burden-shifting.”

Alito also fought back on Justice Jackson’s appropriations clause interpretation:

He also asked Francisco to respond to Justice Jackson’s suggested “any law,” broad interpretation of the appropriations clause, asking specifically whether the clause would have any meaning if the court adopted that interpretation.

The broad interpretation “can’t possibly be right,” Francisco said, adding the clause gives Congress the duty and obligation to exercise a check on executive power and control the nation’s purse strings. Giving up that power, he said, would harm the separation of powers doctrine.

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We’ll see if this obvious difference in opinion translates to a “respectful” dissent or one of the more biting ones.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.

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