Thomas, J., concurring
scheme of review,” as it did in the provisions of the Securities Exchange Act and the Federal Trade Commission Act at issue here. Ante, at 7; see 15 U. S. C. §§45(c) and 78y(a). Under such schemes, administrative agencies may impose orders and penalties on private parties; adjudicate them before agency administrative law judges (ALJs); and only then be subjected to deferential review by an Article III court. As the Court puts it, “[t]he agency effectively fills in for the district court, with the court of appeals providing judicial review.” Ante, at 7. That Article III review is sharply limited. For example, under the administrative review schemes at issue here, the reviewing court must treat agency findings of fact as “conclusive” so long as they are “supported by substantial evidence,” §78y(a)(4); see §45(c) (“if supported by evidence”), a highly deferential standard of review.[1] The reviewing court also cannot take its own evidence—it can only remand the case to the agency for further proceedings. See §§45(c) and 78y(a)(5).
This mixed system—primary adjudication by an executive agency subject to only limited Article III review—is unlike the system that prevailed for the first century of our Nation’s existence. During that period, judicial review was “all-or-nothing”; “either a court had authority to review administrative action or not, and if it did, it decided the whole case.” T. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 Colum. L. Rev. 939, 944, 952 (2011) (Merrill). This all-or-nothing model rested on a conceptual distinction
- ↑ Deferential review of the SEC’s and FTC’s decisions is particularly concerning given their tendency to overwhelmingly agree with their respective agency’s decisions. See 986 F. 3d 1173, 1187 (CA9 2021) (“FTC has not lost a single case [in administrative proceedings] in the past quarter-century. Even the 1972 Miami Dolphins would envy that type of record”); Brief for Respondent in No. 21–1239, p. 9 (noting that, between October 2010 and March 2015, SEC won more than 90% of cases brought before its ALJs as compared to 69% of cases brought before federal courts).
