• Show Notes

Dear Reader,

The Supreme Court heard oral arguments last week on two cases challenging President Joe Biden’s student debt forgiveness plan. The disputes present half-a-trillion dollar stakes, and they’ll be resolved by the nine justices based on nuanced, dispassionate application of technical issues of constitutional law.  

(Holding breath… still holding… can’t hold it much longer…) 

HAHAHAHAHAHA. Just kidding. Here’s the deal. The student debt relief plan is toast. It’s getting struck down. It’ll be six-to-three. In the majority, we’ll have all the conservative justices – who dislike the policy and think it is unfair – giving the thumbs-down. And the three liberals, who embrace the policy goals behind student debt relief, will offer up furious but fruitless dissents. None of this will have anything to do with the law, of course, though the justices will try to dress up their opinions that way. It’ll be all about the desired outcome. At this point, the justices are just nine wannabe policymakers in black robes. 

The student debt relief cases present a perfect petri dish to measure the extent of the Court’s politicization. The actual legal dispute before the Court has essentially nothing to do with the relative fairness or unfairness of Biden’s program. Rather, the case presents two technical issues: (1) Whether Congress authorized the Executive Branch to grant large-scale student debt relief when it passed a post-9/11 law (called the “HEROES Act”) authorizing waiver or modification of student debt in times of war or national emergency, and (2) Who has standing – that is, who has sustained legally cognizable injury – to sue? 

Chief Justice Roberts correctly noted during oral arguments that resolution of these purely legal issues depends not on the justices’ views on the merits of the student debt relief program; questions about whether and how to spend taxpayer money fall to Congress, not the courts. At bottom it doesn’t matter – or, it shouldn’t matter – whether any justice believes student debt relief is fair or foul, wise or foolish, triumph or outrage. 

Yet, throughout oral arguments, the justices kept drifting back, as if pulled by gravity, towards discussion of the fairness of the student debt relief policy. Chief Justice Roberts crafted a hypothetical comparing a young person who takes a student loan to one who borrows money to open a lawn care service; why should the college kid get debt relief but not the landscaper? Justices Kagan and Sotomayor countered that every statute involves winners and losers – those who do receive benefits, and those who don’t – and that’s just how it goes. Both of these viewpoints are perfectly legitimate and compelling arguments when it comes to the pros and cons of the student debt relief program. But they should not dictate the outcome of the lawsuits before the Court.

Now, the justices are savvy enough that they’ve already begun searching for legal cover. Occasionally during oral arguments, they’d excuse their own stubborn focus on the policy merits by claiming that the fairness question was relevant to determining the “major questions doctrine” – the notion that, if Congress wants to make a decision of vast economic or political import, then it must say so specifically, in legislation. But this construction is a jurisprudential Trojan Horse, enabling the justices to smuggle their policy views into the legal calculus. The actual issue under the major questions doctrine is whether the program is substantial enough to require specific congressional authorization; it’s not about whether the policy is fair or unfair. Those are different determinations.

When the decision comes down, it will become one more marker in the Supreme Court’s continuing descent into the partisan muck. There’s good reason why public opinion of the Court is at a historic low, with only about one-quarter of respondents to a recent survey expressing confidence in the Court. Don’t get me wrong; the Supreme Court shouldn’t be in the business of pleasing the masses or winning opinion polls. But it seems that the general public now understands what has happened to the Court in recent years: the justices have become political tools, more makers of policy than diviners of law.

In law school, you’re taught that the job of any judge is to take the law, apply it to the facts, and determine the outcome, without fear or favor. It’s like a mathematical equation: you take the relevant inputs, perform the prescribed function, and you get your bottom line. That’s the answer, like it or not.

But I’m now entirely convinced that the justices do this process exactly in reverse. They start at the bottom with their preferred policy outcome, and then they backfill whatever legal equation gets them there. How else could it be that the conservative justices predictably and inexorably land at the conservative policy outcome, while the three liberals do the same, on their side? (If anything, we’ve seen more instances recently where conservative justices have crossed over to land at a liberal policy outcome than the opposite. For example, Chief Justice Roberts saved the Affordable Care Act more than once, and he and Justice Gorsuch sided with liberals in a 2020 case upholding equal protection for LGBTQ employees from workplace discrimination; show me one recent major case where the opposite happened, where a liberal justice swung a case to the conservative policy result.)

If the justices were just neutrally calling balls and strikes, how could every major outcome be so utterly predictable? If all they did was apply the law dispassionately and let the result be whatever it will be, then why does every justice end up right back in the same policy-based ideological camp in virtually every case? Logically – mathematically – how could that be?

I’ve written before in this space that I’ve had enough with the justices doing their publicity tours, wagging their fingers and hectoring us about how they’re not political because, well, they say they’re not political and whatever they say, goes. It’s the media’s fault, they say. Or maybe it’s the public’s fault, they say, because all you plebeians just don’t understand what we do and how wise we are.

I’m out. I’ve gone full-blown Supreme Court skeptic, or cynic, or nihilist. They’re not about applying the law to determine the outcome; they’re about using the law to justify an outcome. If anything, it’s worse now than ever before. Conservatives are feeling it because they hold an overpowering majority for the first time in generations; they can even afford to lose one vote and still win. And the liberals can’t jump the ideological ship because they’re already getting pummeled as is, even if they hold together in a block of three. 

We’ll get the student debt relief ruling soon enough – by mid-summer, at the latest. And it’ll be dressed up in the legalistic fineries that accompany any Supreme Court ruling. But when that decision comes down, and when it’s exactly six-to-three, exactly split along ideological lines, recognize it for what it is: one more sign of the new, political Supreme Court.

Stay Informed,


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