Former SEC officials did express their views in amicus briefs – but they diverge on the correct interpretation of the Securities Act. Former SEC chair Jay Clayton and former commissioner Joseph Grundfest sided with Slack, arguing that the 9th Circuit’s decision contradicts the statute’s “fundamental structure” and cannot be reconciled with SEC regulations.

Slack amicus Grundfest, now a professor at Stanford Law School, told me by email that the Biden administration’s silence is telling. “The Solicitor General has obviously read the opinions and the briefs and concluded that not taking a position in this matter best serves the interests of the United States government,” he said. “The government is not willing to support the plaintiffs in this matter and the justices will notice.”