Seila Law v. CFPB Part 1: From Humphrey’s Executor to Kavanaugh’s DC Circuit Opinions

Today the Supreme Court heard arguments in Seila Law LLC v. Consumer Financial Protection Bureau, a case that will determine the constitutionality of the agency’s leadership structure. Justice Brett Kavanaugh was notably active from the bench, and had some interesting very interesting questions for the litigants.

This was to be expected, as the case involves an issue that is very close to the Court’s newest justice. In the months before then-Judge Kavanaugh’s confirmation to the Supreme Court, when asked by the Senate Judiciary Committee which of his cases he considers most significant, he put two cases involving independent administrative agencies at the top of his list. Today it was evident that Justice Kavanaugh’s enthusiasm has not faded.

Before diving into an analysis of oral arguments--and because it is particularly hard to read any tea leaves since the Supreme Court is unlikely to invalidate the entire agency in this case--it makes sense to first explore some of the context. In doing this, Justice Kavanaugh’s record is a logical guide, as a look back at his two D.C. Circuit opinions explains some of the more relevant cases and legislative history that led us to the courthouse steps today.