The important point, to round out this already overweighted metaphor, is that this plague ship be permitted neither escape nor repair.
The first of these decisions issued from the U.S. Fifth Circuit (en banc). The majority opinion of the Circuit held that the SEC’s approval of Nasdaq’s bigoted director-selection rule (the Rule) is the sort of action that, if done, had better have been authorized by Congress; it had not been so authorized, making it an ultra vires action beyond the SEC's statutory remit; and the SEC’s error was not mitigated by the Rule’s forcing potentially dangerous speech as an alternative to being thrown off the exchange for observing American civil-rights law.
The majority then reviewed what is central to the SEC's statutory remit. In sum, that review is bad news not just for DEI but for ESG generally, including the carbon-emission regulations; pretty much anything else the SEC has been up to in recent years (and in some instances, such as proposal-review, up to for decades); or any part of the “whole of government” initiatives of this dying administration.
It is extremely unlikely that the U.S. Supreme Court will take up this decision except perhaps for the purpose of rendering it the unquestioned law of the land.
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