Revisiting Jury Trial Right May Upend State Regulatory Power
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The U.S
Supreme Court's June 2024 decision in SEC v
Jarkesy reaffirmed the Seventh Amendment right to a jury trial in federal administrative enforcement actions, holding that the SEC's use of in-house proceedings to impose civil penalties violated this right
Justice Gorsuch's October 2025 statement in Thomas v
County of Humboldt questioned the longstanding precedent that the Seventh Amendment does not apply to states, signaling potential future reconsideration of its incorporation and implications for state agency enforcement processes.
Law360 (November 13, 2025, 4:38 PM EST) --
Daniel Feith
Justin Savage
Leena Dai
The U.S. Supreme Court's June 2024 decision in U.S. Securities and Exchange Commission v. Jarkesy reaffirmed the Seventh Amendment jury trial right in federal administrative enforcement actions, but its impact may soon extend beyond the federal sphere.
On Oct. 14, in a statement regarding denial of certiorari in Thomas v. County of Humboldt, Justice Neil Gorsuch described the century-old rule that the Seventh Amendment does not apply to states as outdated and worth revisiting. Citing Jarkesy, he wrote that "it is hard to imagine how the Seventh Amendment might not be among those rights the Fourteenth Amendment secures against the States."
The Jarkesy and Thomas decisions place renewed focus on state agencies that routinely impose civil penalties through nonjury administrative processes. For companies subject to state regulatory enforcement, the court's growing interest signals a potential constitutional shift in how penalties are adjudicated.
The Supreme Court's Jarkesy decision held that the SEC's use of in-house administrative proceedings to impose civil penalties for securities fraud violated the Seventh Amendment right to a jury trial.[1] The decision — while technically limited to federal administrative enforcement — casts a long shadow over state and local regulatory regimes that rely on similar administrative adjudication systems.
That shadow lengthened last month, when Justice Gorsuch in his Thomas v. Humboldt statement[2] called the court's precedent that the Seventh Amendment does not apply to the states a "relic" that "warrants a second look."[3]
The Seventh Amendment guarantees the right to a jury trial "in Suits at common law" where the value in controversy exceeds $20. Yet, for nearly 150 years, that right has not applied to the states.
Unlike virtually all the rights in the Bill of Rights, the Seventh Amendment's civil jury guarantee was never incorporated against the states through the 14th Amendment's due process clause. That absence of incorporation has allowed state agencies — from environmental to consumer protection regulators — to adjudicate and impose civil penalties without juries.
Justice Gorsuch's statement in Thomas revisits that long-standing divide. He underscored that "those who founded our Nation considered the right to trial by jury a fundamental part of their birthright," and called on the court to "confront its Seventh Amendment holding soon."
Read together with Jarkesy, this case signals an appetite to reconsider the Seventh Amendment's incorporation status in the near term. As tension rises over federal versus state regulatory power — such as in disputes over California's air emission standards — the question grows increasingly consequential for regulated parties.
The Seventh Amendment and Its Nonincorporation
Since the late 19th century, the Supreme Court has repeatedly reaffirmed that the Seventh Amendment's civil jury right does not apply to the states.
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Daniel Feith, Justin Savage and Leena Dai
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In its 1875 decision in Walker v. Sauvinet, the court held that "a trial by jury in suits at common law pending in the State courts is not … a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge."[4] Four decades later, in the 1916 ruling in Minneapolis & St. Louis Railroad Co. v. Bombolis, the court again held that the Seventh Amendment is not "applicable and controlling in proceedings in state courts deriving their authority from state law."[5]
That position has never been overruled. Modern Supreme Court decisions — such as the 1996 decision in Gasperini v. Center for Humanities Inc. — have continued to describe the Seventh Amendment's civil jury right as inapplicable to states.[6] Federal appellate courts have followed suit. As the U.S. Court of Appeals for the First Circuit explained in its 2021 decision in Gonzalez-Oyarzun v. Caribbean City Builders Inc., the Supreme Court "has consistently held that states are not constitutionally required to provide a jury trial in civil cases."[7]
Most recently, in the 2010 ruling in McDonald v. City of Chicago, which incorporated the Second Amendment against the states, the Supreme Court noted that only a handful of rights — among them the Seventh Amendment — remain unincorporated.[8] The court acknowledged that its decisions on the civil jury right "long predate the era of selective incorporation," which began in the mid-20th century.[9]
Under the modern selective incorporation doctrine, the court incorporates amendments of the Bill of Rights against the states if the right is "fundamental to [the American] scheme of ordered liberty and system of justice,"[10] or "deeply rooted in this Nation's history and tradition."[11]
Although the decisions rejecting incorporation of the civil jury right preceded the selective incorporation era by decades, the court in McDonald declined to revisit them, citing stare decisis. As a result, the Seventh Amendment remains a federal-only guarantee, even as nearly every other core right in the Bill of Rights applies to the states.
Jarkesy and the Modern Understanding of the Civil Jury Right
The court's recent decision in SEC v. Jarkesy, however, describes the Seventh Amendment's civil jury right in terms that may signal an openness to reconsidering whether the right applies to the states.
In Jarkesy, the court held that the SEC violated the Seventh Amendment when it sought civil penalties for securities fraud in an administrative tribunal rather than before a jury in federal court. Writing for the majority, Chief Justice John Roberts emphasized that the proceeding was "in the nature of an action at common law" because securities fraud closely parallels traditional common-law fraud and the agency sought legal, monetary remedies rather than equitable relief.
The court rejected the government's argument that the case involved a public right, which could be adjudicated by the agency without a jury. Reaffirming its 1989 ruling in Granfinanciera SA v. Nordberg, the court explained that public rights are limited to matters historically reserved to the political branches — such as customs duties or benefits determinations.[12] By contrast, disputes involving fraud and civil penalties implicate private rights and thus trigger the Seventh Amendment.
Jarkesy played a key role in Justice Gorsuch's statement in Thomas, where he urged the court to revisit the Seventh Amendment's incorporation status.
While the court ultimately denied cert, Justice Gorsuch explained that the petition suffered from "'vehicle' problems" that precluded review. On the merits, Justice Gorsuch argued forcefully in favor of incorporation. Quoting Jarkesy, he described the civil jury as "of such importance" and "occup[ying] so firm a place in our history" that any curtailment of the right should be carefully scrutinized.
Justice Gorsuch expressed skepticism that the Seventh Amendment is any less fundamental than the other incorporated amendments, and highlighted that at the time of the 14th Amendment's ratification, "the right to a civil jury trial remained so deeply rooted that perhaps 97% of Americans at the time lived in States that guaranteed that right." Notably, this language mirrors the court's selective incorporation test and could support future arguments that the Seventh Amendment is deeply rooted in American tradition.
Implications for State Administrative Enforcement
If the Supreme Court were to incorporate the Seventh Amendment — or if state courts independently adopt Jarkesy's reasoning under their own constitutions — the effects could be significant. Many state agencies currently rely on administrative hearings to impose civil penalties for violations that closely resemble common-law torts or fraud claims.
The California Air Resources Board, for example, may impose administrative or civil penalties for false certification or misrepresentation in vehicle emissions compliance through nonjury hearings before agency officers under Section 43023 of the California Health and Safety Code.[13] The board's enforcement policy describes these proceedings as an "alternative to civil penalties."[14]
Similarly, the New York Department of Financial Services may impose penalties "after notice and hearing" before a departmental hearing officer under Section 109 of the New York Insurance Law.[15] The agency has historically used this authority to levy civil penalties for misrepresentation or deceit by licensees.
In states that already recognize a civil jury trial right under their own constitutions or statutes, parties might consider a Jarkesy-like argument by invoking similar structural and due process concerns under state law.
Ongoing Debates and Practical Constraints
Incorporation of the Seventh Amendment would raise complex policy and structural issues. Critics warn that applying the civil jury trial right to the states could significantly affect some existing state nonjury systems, including small claims courts and Delaware's Court of Chancery.[16] They emphasize that jury trials can be resource-intensive, and may complicate or delay certain types of proceedings, particularly those involving corporate law.[17]
Concerns about federalism also feature prominently in the debate. The historical division between law and equity, central to the Seventh Amendment, was not uniform among the states in 1791. Today, opponents contend that requiring a uniform federal definition of "suits at common law" could limit state flexibility in shaping their own judicial procedure, potentially unsettling the balance of authority envisioned by the 14th Amendment.[18]
Supporters respond that incorporation would not require imposition of an inflexible template.[19] Instead, an incorporated Seventh Amendment could preserve the core requirement of a jury trial for private rights while allowing states flexibility to define the requirement's contours. By doing so, it would restore a core constitutional safeguard that limits government power by placing the determination of private rights in the hands of citizens rather than administrative officials.
Incorporation would also eliminate what Justice Gorsuch describes as a "two-tiered system of justice," where jury trials are guaranteed in federal agency enforcement but "state and local agencies pursuing similar charges and similar relief" remain "free to dispense with the hassle of proving their case to a jury." From this perspective, incorporation would advance fairness and parity across forums and reinforce the jury's role as a structural check on government authority.
Conclusion
The Supreme Court's decision in Jarkesy reaffirmed the centrality of the civil jury in protecting private rights against governmental overreach. Justice Gorsuch's October statement in Thomas v. Humboldt builds on that foundation, questioning the historical nonincorporation of the Seventh Amendment and inviting the court to revisit the issue.
For state and local regulators — particularly agencies like the California Air Resources Board that frequently impose monetary sanctions through administrative processes — the implications could be profound. Whether through state constitutional developments or future Supreme Court review, the boundaries of the civil jury trial right are poised to evolve. Regulated parties, in particular, should closely monitor these developments as courts and agencies reassess the constitutional limits of administrative enforcement.
Daniel Feith is a partner at Sidley Austin LLP.
Justin Savage is a partner and global co-leader of the environmental practice at the firm. He previously served as senior counsel at the U.S. Department of Justice's Environmental Enforcement Section.
Leena Dai is an associate at Sidley.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] U.S. Securities & Exchange Comm'n v. Jarkesy , 144 S. Ct. 2117 (2024).
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