Securities Law in the Roberts Court: Agenda or Indifference?

Historically, securities law has not been a high priority for the Supreme Court. The first five years of the Roberts Court, however, suggest an upsurge of interest in the federal securities laws, with nine cases decided, a significant increase from the Rehnquist Court’s average. These numbers are deceptive. Analysis of the opinions deciding these cases – and more importantly, the issues debated by the justices – suggests that the Court is not interested in the substance of the securities laws or the policies that animate them. Instead, securities law serves as a backdrop for debates over statutory interpretation and the relationship of the judiciary to the administrative state. Only in the area of securities class actions is there any engagement with the specific subject matter. Notwithstanding charges that the Roberts Court is “pro business”, the Court has not charted a consistent course favoring corporate defendants. Instead, the Court has demonstrated a bias toward the status quo, resisting attempts to both expand – and restrict – the reach of Rule 10b-5 class actions. This article explores the implications of the Roberts Court’s indifference to securities regulation and securities markets for the making of securities law