Democratic justices blast majority opinion on student debt

This is an unusual situation where Democratic Supreme Court justices harshly criticize radical right Republicans for judicial over-reach to say the least. Elena Kagan wrote the Democratic dissent in JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. NEBRASKA, ET AL.  The issue in the case is whether the Secretary of Education has authority under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) to depart from the existing provisions of the Education Act and establish a student loan forgiveness program that will cancel about $430 billion in debt principal and affect nearly all borrowers. In her dissent, Kagan wrote:

In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.

I

The Court’s first overreach in this case is deciding it at all. Under Article III of the Constitution, a plaintiff must have standing to challenge a government action. And that requires a personal stake—an injury in fact. We do not allow plaintiffs to bring suit just because they oppose a policy. Neither do we allow plaintiffs to rely on injuries suffered by others. Those rules may sound technical, but they enforce “fundamental limits on federal judicial power.” Allen v. Wright, 468 U. S. 737, 750 (1984). They keep courts acting like courts. Or stated the other way around, they prevent courts from acting like this Court does today.

If the plaintiff has no such stake, a court must stop in its tracks. To decide the case is to exceed the permissible boundaries of the judicial role. That is what the Court does today.

The plaintiffs here are six States: Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina. They oppose the Secretary’s loan cancellation plan on varied policy and legal grounds. But as everyone agrees, those objections are just general grievances; they do not show the particularized injury needed to bring suit. And the States have no straightforward way of making that showing—of explaining how they are harmed by a plan that reduces individual borrowers’ federal student-loan debt. So the States have thrown no fewer than four different theories of injury against the wall, hoping that a court anxious to get to the merits will say that one of them sticks.  The most that can be said of the theory the majority selects, proffered solely by Missouri, is that it is less risible [laughable] than the others. It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else’s injury.

II

The majority finds no firmer ground when it reaches the merits. The statute Congress enacted gives the Secretary broad authority to respond to national emergencies. 

The majority picks the statute apart piece by piece in an attempt to escape the meaning of the whole. But the whole—the expansive delegation—is so apparent that the majority has no choice but to justify its holding on extrastatutory grounds. So the majority resorts, as is becoming the norm, to its so-called major-questions doctrine.

The tell comes in the last part of the majority’s opinion. When a court is confident in its interpretation of a statute’s text, it spells out its reading and hits the send button. Not this Court, not today. This Court needs a whole other chapter to explain why it is striking down the Secretary’s plan. And that chapter is not about the statute Congress passed and the President signed, in their representation of many millions of citizens. It instead expresses the Court’s own “concerns over the exercise of administrative power.”

But assume the opposite; there is, even on that view, nothing like those circumstances here. (Or, to quote the majority quoting me, those “case[s are] distinguishable from this one.” Ante, at 23.) In this case, the Secretary responsible for carrying out the student-loan programs forgave student loans in a national emergency under the core provision of a recently enacted statute empowering him to provide student-loan relief in national emergencies. Today’s decision thus moves the goalposts for triggering the major-questions doctrine. Who knows—by next year, the Secretary of Health and Human Services may be found unable to implement the Medicare program under a broad delegation because of his actions’ (enormous) “economic impact.”

Similarly unavailing is the majority’s reliance on the controversy surrounding the program. Student-loan cancellation, the majority says, “raises questions that are personal and emotionally charged,” precipitating “profound debate across the country.” Ante, at 22. I have no quarrel with that description. Student-loan forgiveness, and responses to COVID generally, have joined the list of issues on which this Nation is divided. But that provides yet more reason for the Court to adhere to its properly limited role.

From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage[]” those who disagree. Ante, at 26. The majority is right to make that point, as well as to say that “[r]easonable minds” are found on both sides of this case. Ante, at 25. And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” Supra, at 1. It would have been “disturbing,” and indeed damaging, if they had not. Ante, at 25. The same is true in our own day.[1]

The majority’s opinion begins by distorting standing doctrine to create a case fit for judicial resolution. But there is no such case here, by any ordinary measure. The Secretary’s plan has not injured the plaintiff-States, however much they oppose it. And in that respect, Missouri is no different from any of the others.

What one sees here is an indication of the radical right's increasing reliance on the major questions doctrine. That doctrine allows the Supreme Court to bring congressionally delegated spending authority for major laws into question. That means that congress can write a law and delegate authority about how the spending is implemented to the federal agency involved, e.g., loan forgiveness in a national emergency as is the case here.

When Kagan mentioned the possibility of nullification of spending authority for Medicare, she was not pulling that out of thin air. One of the core targets for radical right government domestic spending haters is Medicare, along with Medicaid and social security. The student loan forgiveness at issue here is fairly small game, ~$430 billion. What the radicals really want to hunt is the bigger game like Medicare, Medicaid and social security. This case marks a precedent on the road to killing the really big targets.

In essence, what Kagan is doing here is bluntly warning us about what is to come if the radical right remains dominant in the Supreme Court.  

Footnote:

1. The Hill writes about the response of the radical right chief justice Roberts to Kagan's bitter dissent:

Roberts takes aim at liberal justices in 

defending Supreme Court’s legitimacy

Chief Justice John Roberts’s majority opinion striking down the Biden administration’s student debt relief plan ended with a note taking aim at the court’s liberal justices in defending the Supreme Court’s legitimacy.

Roberts, in response, took issue with Kagan’s take.

“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Roberts wrote.

Kagan’s dissent was joined by fellow liberal Justices Sonia Sotomayor and Ketanji Brown Jackson. Kagan read portions of her dissent aloud from the bench, a rare occurrence that signals the significance of the justices’ disagreement.

“Reasonable minds may disagree with our analysis — in fact, at least three do,” Roberts wrote in his student debt decision, referencing the dissent.

Can you feel the temperature rising in the Supreme Court? I can. At least Roberts and Kagan are still openly saying they are not criticizing each other personally. They are just disagreeing on what this court is doing. For some that criticism can be seen as questioning the court's legitimacy because, e.g., it makes the Republicans on the court look like partisans taking an active part in advancing the Republican Party and its dominant ideology agendas.