On Tuesday, during the Supreme Court’s oral arguments in the Consumer Financial Protection Bureau’s funding case, Justices Samuel Alito and Ketanji Brown Jackson were embroiled in an intriguing exchange, showcasing the unfolding tension on the High Court as they traded differing viewpoints on the case. The arguments revolved around the unique funding of the agency which sources its finances directly from the Federal Reserve. Above the Law provides a detailed account of the proceedings.
U.S. Solicitor General Elizabeth B. Prelogar, representing the CFPB, faced some pointed inquiries from Justice Alito concerning this unprecedented funding mechanism. While Prelogar contested that the agency’s unconventional funding model doesn’t “track the constitutional value,” Justice Brown Jackson emerged as a staunch defender of the agency, raising counter-questions about the burden of proof. Law360 provides more insight on these exchanges.
Justice Jackson argued that the onus should be on the contesting parties to demonstrate that the established structure of the agency is prohibited by Congress. This back-and-forth between the Justices and the U.S. Solicitor General continued across various interactions.
Despite the robust defense from Jackson, Alito disagreed, citing it as a basic practice to request counsel in cases to determine the “limiting principle of the argument.” He rejected claims of burden-shifting and disagreed with Jackson’s interpretation of the appropriations clause, believing that the mooted “any law,” broad interpretation of the clause would undermine its meaning and could feasibly erode the clear separation of powers doctrine.
As the tension continues to rise, it remains to be seen if this marked difference in opinion will translate into a respectful dissent or a harsher discourse. ABA Journal casts some light on a concurrent narrative, following a drop in politely worded dismissals among the judges.