Conservative Justices practicing Law and the Major Question Lawyering

Some information on Student loans sitting in SCOTUS. I would think the big issue here is who has standing. The states do not.

Conservative jurists demand “textualism” to get what they want, except when a statute’s words thwart their desired goal. But by using a new trick, they break their own rules. That’s how they blew up the EPA’s Clean Power Rule and may soon eviscerate Biden’s student loan relief.

The Conservative Justices and the “Major Questions” Hustle, Washington Monthly. Caroline Fredrickson

Conservatives claim “textualism” is the only defensible approach to analyzing and applying a legal text. The term emphasizes the “plain meaning” of the text of a legal document and rejects the use of legislative history and other contextual resources to clarify vague or confusing language. Perhaps not surprisingly, this approach almost always leads to conservative outcomes cloaked in a veneer of neutrality. But with the rise of the “major questions” doctrine, we can now see that “textualism” is synonymous with hypocrisy. The doctrine, which requires that agencies receive explicit direction from Congress to address a particular issue, gives the Court’s conservative supermajority a tool to achieve their preferred outcomes when textualism doesn’t get them there.

Here’s an example. It’s clear from oral arguments in the student loan case that the Supreme Court heard last month that textualism wouldn’t allow the panel’s conservatives to kill the administration’s plan, which provides relief to millions of post-secondary students.

That the loan relief costs a lot of money must mean that Congress had not actually authorized it, contended Chief Justice John Roberts at the arguments. But by passing a 2003 law signed by President George W. Bush, Congress authorized the education secretary to address emergencies. The Higher Education Relief Opportunities for Students Act, known as the HEROES Act, states explicitly that the secretary of education may “waive or modify any statutory or regulatory provision” to help loan recipients affected by “a war or other military operation or national emergency.” As Justice Elena Kagan said at the arguments,

Congress could not have made this much more clear,


“We deal with congressional statutes every day that are really confusing. This one is not.”

Even Justice Brett Kavanaugh admitted that “waive” is “an extremely broad word,” and “in 2003, Congress was very aware of potential emergency actions in the wake of September 11.”

The late Justice Antonin Scalia was perhaps the foremost advocate for “textualism,” arguing that it would provide more “certainty in the law, and hence greater predictability and greater respect for the rule of law.” Scalia allowed that judges could consult dictionaries and use linguistic “canons of statutory construction” to elucidate vagueness but insisted that textualism was the only way to avoid judicial encroachment on legislative terrain.

While many legal scholars have criticized “textualism” because the text is often vague, conservatives have continued to affirm the approach. But they have hit road bumps. First came Bostock v. Clayton County, a 2020 case in which textualists on the Court split into warring camps over Title VII of the Civil Rights Act of 1964 and whether the term “sex” in the statute means that it prohibits discrimination against a gay, lesbian, or transgender individual. Justice Roberts joined Neil Gorsuch and the Court’s liberals in saying it does. So clearly, textualism isn’t much better at determining the “true” meaning of a statute than other approaches, and arguably less so.

But most significantly, the Supreme Court has recently introduced a major loophole in textualism to allow the Court to ignore statutory language if the Court deems the issue a “major question” not sufficiently addressed by the statute.

In West Virginia v. EPA, the Court found that Congress could not allow the agency to issue an important regulation known as the Clean Power Plan. The plan aims to push electricity generation from coal- to gas-fired power plants and support renewable energy like wind and solar power. By finding that the EPA’s rule—a rule, by the way, that had never taken effect—would have had significant economic consequences, the Court then held that it was an exercise of “highly consequential power beyond what Congress could reasonably be understood to have granted,” making it a “major question. “And even though the Court recognized that there was a “plausible textual basis” for the EPA’s rule because this rule was “major,” the Court required more from Congress. When is Congress clear enough? That’s hard to say.

Similarly, the Court found that two rules responding to the pandemic exceeded agency power again because the issue was a “major question,” and Congress hadn’t addressed them with sufficient clarity. In the first case, the Centers for Disease Control acted to restrict commercial and residential evictions where there was a high COVID-19 transmission rate. In the second case, the Court objected to the Occupational Safety and Health Administration issuing a rule that large employers should require employees to be vaccinated or tested. The statutes in question in both cases quite clearly gave the agencies the power, in the interest of advancing public health, to pursue these rules. But the “major questions” doctrine allowed the Court simply to ignore the law.

Textualism is sold as a way to constrain judges and to ensure that the legislature alone would do the legislating. But we can now see textualism for the dispensable ruse it really is—when cases come out the way conservatives want, it’s just fine. But when the text gets in the way, the “major questions doctrine” allows right-wing justices to make the explicit text disappear as if they had a magic wand. So much for the text and so much for the rule of law.