Gorsuch, J., concurring in judgment
No. 21–86, p. 18 (suggesting the FTC has won more like 90% of the time).
That review is available in a court of appeals after an agency completes its work hardly makes up for a day in court before an agency says it’s done. When a case eventually makes its way to an appellate court, judges sometimes defer to the agency’s conclusions (especially when it comes to disputed questions of fact). And how many people can afford to carry a case that far anyway? Ms. Cochran’s administrative proceedings have already dragged on for seven years. Thanks in part to these realities, the bulk of agency cases settle. See Tilton v. SEC, 824 F. 3d 276, 298, n. 5 (CA2 2016) (Droney, J., dissenting) (“vast majority” of SEC cases settle); Tr. of Oral Arg. in No. 21–1239, p. 6 (“more than 90 percent” of such cases settle). Aware, too, that few can outlast or outspend the federal government, agencies sometimes use this as leverage to extract settlement terms they could not lawfully obtain any other way.[1] Like any needlessly unclear jurisdictional test, Thunder Basin carries with it real costs—for individuals seeking to vindicate their rights, for lower courts who deserve better guidance, and for our legal system’s promise of a “just, speedy, and inexpensive determination of every” case, Fed. Rule Civ. Proc. 1. *
When Congress withholds jurisdiction, we must respect its choice. But when Congress grants jurisdiction to the Nation’s courts, we must respect that choice too. We have no authority to froth plain statutory text with factors of our
- ↑ See P. Hamburger, Purchasing Submission: Conditions, Power, and Freedom 223 (2021) (describing this as “regulatory extortion”); D. Ginsburg & J. Wright, Antitrust Settlement: The Culture of Consent, in 1 W. Kovacic: An Antitrust Tribute 177 (N. Charbit et al. eds. 2013) (“Consent decrees create potential for an enforcement agency to extract from parties under investigation commitments well beyond what the agency could obtain in litigation”).
