Justices Scalia And Thomas Amenable To Reexamining Deference To SEC Statutory Interpretations

Like Prince Charming searching for the foot that fit the glass slipper, Justice Scalia recently issued a statement advising that he and Justice Thomas would be receptive to granting certiorari to a petition properly presenting the issue of whether, in a criminal context, a court should grant deference to an administrative agency's statutory interpretation. And, like the townspeople who lined up to offer their own feet for consideration, lawyers across the country undoubtedly will offer the Court a variety of cases from which to choose.

On November 10, 2014, the Supreme Court issued an order denying certiorari in a matter where the Second Circuit had affirmed a criminal conviction under the securities laws. Whitman v. United States, 574 U.S. ___ (November 10, 2014). The order also included a brief statement by Justice Scalia, joined by Justice Thomas, reflecting the two Justices' interest in considering the issue of agency deference in an appropriate future case.

The indictment in United States v. Whitman, 904 F. Supp. 2d 363, 365 (S.D.N.Y. 2012), charged the defendant with...