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.

17 thoughts on “Kagan v. Roberts and the Student Loans Case

  1. I'm mentally and emotionally spent to the point where I'm speechless after this week's revelations.

    The SC, Russia. The POTUS calling his "middle – out" economic plan "Bidenomics

    I need to refocus.

    Because I get the feeling "something wicked this way comes.."

  2. I personally think Biden's plan was flawed, for a variety of reasons, mostly the 125k cap. Seems like someone making that kind of bank doesn't need loan forgiveness, I worked as an engineer for thirty plus years and never made 125k? It’s just my opinion and I will admit that the program was modest at only 10k in benefits, I just wish it would have been better targeted. That being said Justice Kagen is completely right, courts are there to decide a case between two legitimate sides, this case of course didn't have two sides that had actual standing, it was a setup. They shouldn’t decide the case because they disagree with the policy as I do, I’m not a judge I’m just some schmuck with an opinion? The "gay wedding website case" was even more egregious; the women who "brought" that case never designed a wedding website and also never had a gay couple ask her to. Both of these cases were engineered for the 6-3 vote they received. It' all just GQP dark money groups manipulating the Judicial system that they have bought and paid for. The GQP did a masterful job at putting ideologues in all the courts that they knew would decide these cases in their favor. It’s just another example of the Republican party manipulating a system that they really don’t believe in but they sure understand how to burn down. What ever will they fuck up next year?




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

    Roberts answered that earlier this week, by rejecting the Independent Legislature Theory – that’s one line most of the Court wasn’t willing to cross. Blows my mind that 3 of them were for it.

    I read that Biden isn’t interested in packing the Court, adding more justices. That’s the only remedy I can see, unless some of them retire or die off. I respect Joe Biden’s ability to get things done despite this Congress, so maybe he’s coming from the perspective of a Jedi Master, “patience young Luke Skywalker”.

    I do know that if the Dems manage to get both Houses of Congress and the Presidency, there will be a massive groundswell to add more justices. IMO, this isn’t out of the question, given the disarray among the Republicans and the fall-out from the coming demolition of the SS Trump.

    re “Bidenomics” – IMO this is just sticking a label on what he’s been doing all along. His poll numbers aren’t good (don’t understand why), so maybe this is PR / damage control.

    • "That’s the only remedy I can see, unless some of them retire or die off"

      Well they will all die eventually! As you point out we can find some encoragement that Roberts, Kavanaugh and Barrett didn't decide  (Independent Legislature Theory) to end our chances at ever replacing any of them forever. It was that close. The decisions are bad but the fact that they are even hearing these cases does not bode well for the future. All we can do is vote!

    • The Independent Legislature Theory didn't just take power away from voters, it took power away from courts. So I suppose we shouldn't be too surprised the majority saw sense on that one.

  4. Clarence Thomas and Samuel Alito are 74 and 72 years old. In six years that's 78 and 76 years old. It's not unlikely that one or both will retire in Biden's second term. Would I like the matter resolved sooner than that? Hell, yes! But decisions like what got handed down today ought to be a major election point next year.

    I remember vividly and the discussion is in the archives – we had to elect HRC to save the USSC. Mitch kept a seat open for a year to block Merrick Garland's nomination. Because HRC was a hold-your-nose bad candidate, Trump squeaked in as an unknown. Four years later, Trump was known and rejected. But the damage to the USSC was done. But not permanent. Students vote and they should be angry. Women vote – Roe has them riled and they aren't "getting over it." 

    Trump was and is taking victory laps over reversing women's rights. His five-million-dollar loss to E. Jean Carrol will (I predict) turn into a twenty-million-dollar loss when the case goes to court again after Trump maligned her again. 

    The court just slammed affirmative action – that decision will reverberate throughout the entire black community and with everyone who sees opportunity and diversity for minorities as a major issue. So the USSC is gifting the left with fascist decisions at the moment Biden and Democrats running for Senate can point to the two oldest and most corrupt members of the court to motivate voters to show up.

    Yes, Trump and the GOP will argue that they have to win so they can make the USSC even MORE fascist. So please, push the GOP into that argument because it inspires a LOT more votes for Biden than for the GOP.

    Flip side: Trump will be appealing multiple criminal convictions when the general election rolls around. For anyone who bothers to look at the facts, it will be obvious that Trump is a misogynistic business cheat who flaunted (and concealed) national defense secrets. If Rudy flips, as seems likely, we will have Trump up on charges for J6, possibly including seditious conspiracy. (I want that discreet pin that shows a piece of burnt toast.) 

    I have not yet seen but I want to see the argument that if Trump is innocent, he should be EAGER to clear his name in court BEFORE the election. The logical conclusion regarding Trump trying to delay everything is that he sees a self-pardon as his only escape. Why are you afraid of a jury if the law is on your side?

  5. Doug,

    Thankfully, yes, I'm out.

    Remember, my (reported) problems are physical – not mental.

    I got better, so they had to let me go. 
    This time… 😉

  6. If these are the cases they are hearing, what are they passing on?

    Real cases not designer ones are not their agenda

  7. Chris Hayes, in The Imperial Mindset of the Supreme Court conservatives, explains what is so wrong about the decisions. It’s not the outcomes, it’s the multiple violations of standard legal process: the cases should’ve never been brought before the court as there was no demonstrable harm. I believe Kagan said as much in her dissent.

    Also, some of the plaintiffs were bogus, but the dopey court conservatives didn’t care.

    Especially galling is Roberts trying to paper it over, “there’s nothing to see here, move along”. Get Real, John Roberts, or the people of this country are going to get real with you.

  8. Jaime Bouie expresses it well, citing Kagan:

    “From the first page to the last, today’s opinion departs from the demands of judicial restraint,” Kagan wrote. “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.”

    She continued: “That is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not themselves elected, serve a President with the broadest of all political constituencies. But this Court? It is, by design, as detached as possible from the body politic. That is why the Court is supposed to stick to its business — to decide only cases and controversies, and to stay away from making this Nation’s policy about subjects like student-loan relief.”

    The court, Kagan concluded, “exercises authority it does not have. It violates the Constitution.”

    It’s a remarkable statement. To say that the Supreme Court can violate the Constitution is to reject the idea that the court is somehow outside the constitutional system. It is to remind the public that the court is as bound by the Constitution as the other branches, which is to say that it is subject to the same “checks and balances” as the legislature and the executive.

    Kagan’s dissent, in other words, is a call for accountability. For Congress, especially, to exercise its authority to discipline the court when it oversteps its bounds.

    Democrats may or may not get this particular message. But John Roberts heard it loud and clear. “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,” he wrote in his opinion. “It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”

    For Roberts, the problem isn’t that the Supreme Court is overstepping its bounds, it’s that one of its justices has decided that she’s had enough.

    • I expect some right-wing mouthpiece will propose impeaching Kagan as a result.

  9. Isn't this all covered in the gospel of greed?  The intent of student loans is to create a class of wage slaves who graduate from institutions of educational illusion, like Trump University, who end up with nothing but a big debt they cannot bankrupt their way out of.  Hence, a near permanent underclass that is readily exploited.  

    I'd check but I must have misplaced my copy of that gospel and the local library does not have a copy either.  

    Anyway, I'm fairly sure this is the Christian way we do things in the new Theocracy.  

    The scam master is viewed as infallible in all matters, like flush toilets, not just political ones you know. 


  10. Some what off topic, but given this:

    “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 [Kagan] wrote.

    Then the 303 Creative v. Elenis case should not have been heard, since the business owner, Smith, hadn't been asked to create a "LGBTQ" site.  Now we find out that the person who supposedly asked her is a heterosexual married man whose name, her lawyers say, was used by a "troll" to make a phony request, which they then used to push their case forward.  Given that the entire thing appears to be based on a ruse, by not rejecting it, it appears the conservatives on the court were in on the scam.  (and yet we are to believe when they are feted on multi-million dollar junkets paid for by far right billionaires and “evangelical christians” they never discuss cases like this )

    This court is thoroughly corrupt, not only in the personal financial dealings (read: bribery) of the conservative members, but in their penchant to totally ignore the law and the Constitution where it stands in the way of their partisan agenda.  The conservative majority has positioned themselves as kings, where they use their unchallengeable positions to make policy and change laws as it suits their political ideology.  And unless the democrats can take sufficient control of government and muster the political will to expand the court, dilute their power and instate real ethics laws, the country will be under threat of rule by literally six men who are unanswerable to the voters and above the law themselves, for possibly decades to come. I can't imagine this is an outcome the Founders envisioned. 

  11. OT: Thirty shot, two dead at black party in S. Baltimore. I can't find it now on CNN online.

    If CNN has decided mass shootings aren't news, how will we galvanize political pressure? I don't know who calls out the media for being complicit by apathy, but it needs to happen.

  12. @Csm – Joyce Vance wrote, that when it's discovered that there was something wrong with the evidence used to reach a judgment – such as a non-existent web client – the court can "vacate" its judgment. Fat chance this one will, but this non lawyer suspects a future court could (fingers crossed)

    Teri Kanefield wrote that it appears that the Roberts court is doing all it can to erase the Earl Warren court, which was the most liberal court in this country's history. Roberts doesn't appear to want full autocratic rule, otherwise they would've sided with Trump's fraudulent claims, as well as marginalize their own power.

    Vance regularly writes on substack, Teri has her own site. Both are well worth reading + getting on their email list.


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