Kagan v. Roberts and the Student Loans Case

There’s too much to comment on right now, with the big SCOTUS decision dump. I’m going to zero in on Justice Elena Kagan’s dissent in the student loan case.  In brief, Justice Kagan said the court substituted its own policy judgment for that of Congress and the executive branch. She begins, “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.”

“The Court’s first overreach in this case is deciding it at all,” she continued.

“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,” she wrote.

“The plaintiffs in this case are six States that have no personal stake in the Secretary’s loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary differs. In giving those States a forum — in adjudicating their complaint — the Court forgets its proper role. The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies,” Kagan wrote.

As a result, “this Court today decides that some 40 million Americans will not receive the benefits the plan provides.”

She said it’s not — or should not be — the high court’s role to set policy.

“The policy judgments, under our separation of powers, are supposed to come from Congress and the President. But they don’t when the Court refuses to respect the full scope of the delegations that Congress makes to the Executive Branch. When that happens, the Court becomes the arbiter — indeed, the maker — of national policy,” she wrote, adding that “is no proper role for a court. And it is a danger to a democratic order.”

David Dayan at The American Prospect explains who the plaintiffs are in more detail.

The Biden Administration had argued that the loan forgiveness plan was authorized under a 2003 law called the Higher Education Relief Opportunities for Students Act, or HEROES Act. Chief Justice Roberts, in his majority decision, said the HEROES act was not specific enough.

Kagan countered that “Congress may have wanted the (Education) Secretary to have wide discretion during emergencies to offer relief to student-loan borrowers. Congress in fact drafted a statute saying as much. And the Secretary acted under that statute in a way that subjects the President he serves to political accountability — the judgment of voters. But none of that is enough. This Court objects to Congress’s permitting the Secretary (and other agency officials) to answer so-called major questions. Or at least it objects when the answers given are not to the Court’s satisfaction.  So the Court puts its own heavyweight thumb on the scales.”

Chief Justice Roberts disagreed, because reasons.

“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. …

… “We do not mistake this plainly heartfelt disagreement for disparagement,” he continued. “It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”


Kate Riga writes at TPM:

The majority — “as is becoming the norm,” Justice Elena Kagan narrates in her dissent — relies heavily on the major questions “doctrine,” a theory in vogue in right-wing legal circles. It dictates that when executive branch agencies take action of major “economic and political significance,” they lose the usual judicial deference they enjoy. That standard of significance is wholly in the eye of the beholder — an amorphousness the majority has continually taken advantage of. That has usually translated, in the hands of this conservative Court, into various Biden administration actions meeting their doom. 

While the Court often protests that it’s really shifting power back to Congress when it knocks down agency actions, it does so knowing that Congress is usually stalemated by various factors (split party control, the Senate filibuster) that make it extremely difficult for the legislature to pass many major laws. 

It also disrupts the usual separation of powers balance: Congress writes broad laws authorizing agencies to deal with issues (letting the Environmental Protection Agency regulate air pollution or the Education Department deal with federal student debt), passing on the responsibility of crafting the specifics to the expert-staffed agencies. But this Court continues to impose itself on that process, deciding that Congress didn’t meet some vague standard of specificity in its delegation and knocking down agency actions it doesn’t like. 

See also Ed Walker at Emptywheel and Elura Nanos at Law & Crime.

My question is, at what point will the Roberts court succeed in completely stripping away the aiblity of We, the People to govern ourselves?

And I will also predict, as sure as night follows day, that there will be people posting on social media who blame Joe Biden on why they have to start paying back student loans again.