Hugh Berkson, president of the Public Investors Arbitration Bar Association, said the fiduciary rule should be on solid ground in any case because the DOL dotted its I’s and crossed its T’s.
“I would be very surprised if fighting the DOL final rule is successful. It certainly seems as though the department has done everything right,” he said.
In an interview last month, LPL Financial president Dan Arnold said that he did not expect challenges to the DOL to be successful. Over the long term, LPL, the nation's largest independent broker-dealer, is revamping its business in the expectation of increased regulatory oversight and scrutiny.
At the macro level, keep in mind that the high court has other senior citizens. Justice Anthony Kennedy is 79, the same age Justice Scalia was when he died last week. Ruth Bader Ginsburg is 82 and has had health problems. Stephen Breyer is 77.
If more justices pass away or resign and a new Democratic president fills those vacancies, the court, which has been pro-business in recent decades, could become more sensitive to the rights of consumers, said Brooks Magratten, editor of an American Bar Association book looking at federal judicial rulings on pension law.
A Republican appointment to the court would be more likely to oppose the fiduciary rule, but sometimes justices can surprise. The liberal favorite of the 20th century was Chief Justice Earl Warren, who helped pave the way for desegregated schools and the Miranda warnings for criminal suspects. Who nominated him? Republican Dwight David Eisenhower.