The Supreme Court as Museum Curator: Securities Regulation and the Roberts Court

Abstract

The number of opinions relating to securities regulation that have been handed down by the Supreme Court since Chief Justice Roberts began his tenure on September 29, 2005 is substantial. The Roberts Court has taken approximately two securities regulation cases per term, which is twice the number that the Rehnquist Court took. Moreover, the number of cases granted certiorari continues to shrink, which means that securities law cases represent an even larger portion of the Court’s docket.

The roughly twenty-one opinions authored by the Court might suggest a deep and abiding love of securities regulation issues. But, as this symposium article explores, the opinions themselves tell a different story with the Court serving in the role of a museum curator maintaining historical relics from bygone eras, doing minor restoration work as needed, limiting access to these relics through statutory interpretation, and occasionally offering an exhibition involving issues at the periphery of securities law. The implications of this approach include the death of the lower courts laboratories approach in regard to creating securities law, especially in regard to the Second Circuit, which was previously the “Mother Court” in securities regulation; the entrenchment of good and bad Supreme Court precedent; and a clear message that the Roberts Court is not pro-business in the securities regulation realm because the Court is not pushing any market regulation agenda. While the future remains open, this role for the Court is well-entrenched, and the narrative of the Roberts Court in regard to securities law is well-developed.

Keywords: Roberts Court, SCOTUS, Securities Law, Securities Regulation, Supreme Court