The Supremes-Court Conservatives Change the Rules of the Game
This is a pretty good take on what happened at SCOTUS for 303 Creative LLC v. Elenis and Nebraska (which had no standing) v. Biden. Recently and along similar circumstance, the court rejected complainants’ cases due to not having standing. In this instance, the court changes its tune. Ankush explains the reasoning for the court’s decision being flawed better than I do.
I resurrected an older post done by an attorney about Roberts which I will post tomorrow.
On Student Loans, Supreme Court Changed the Rules, nymag.com, by Ankush Khardori
Lawyers ostensibly deal in rules, their identification, their development, their application. As the conservative majority on the Supreme Court demonstrated on Friday, the process can easily be manipulated to reach your desired outcome if you create new rules out of whole cloth, or if you contrive an exception so large that the rule is practically meaningless.
In different ways, that is what happened in two major decisions released by the Court on Friday, one in which they threw out President Joe Biden’s $400 billion student loan debt relief program (Biden v. Nebraska), and another in which they concluded that a woman who claims to want to design websites for weddings is free to discriminate against same-sex couples because of her supposed religious convictions (303 Creative LLC v. Elenis). Both cases were decided 6-3, with the liberal justices in dissent.
The purported legal analysis in these cases offered by the conservative justices is straightforward.,
In Biden v. Nebraska, the question was whether Biden’s student loan debt relief plan fell within the terms of a statute that allows the Secretary of Education to “waive or modify” student debt laws in a “national emergency” as Donald Trump declared the Covid pandemic to be in 2020. Under Biden, the agency announced that it would reduce and eliminate certain tranches of student debt pursuant to that statutory power.
Writing for the conservative majority, Chief Justice John Roberts concludes the federal government has the power to “waive or modify” relevant provisions but “not to rewrite that statute from the ground up.” In his telling, the power allows for “modest adjustments and additions” whereas the Biden administration functionally replaced the old rules with “radically new text.”
Let’s take a step back here, because it used to be the case that conservative judges broadly held firm to a series of legal doctrines that would ordinarily have made this a pretty easy win for the administration.,
First, the Court’s conservatives have claimed to be committed textualists, focused first and foremost on what the statutory text says, rather than substituting their own policy judgments.,
Second, they had supposedly made their peace with the so-called Chevron doctrine, which has historically required courts to defer to federal agencies’ legal interpretations of their own statutory authority provided those interpretations are at least reasonable.,
And third, they have claimed to exercise judicial restraint by recognizing the unique power afforded to the two representative branches of the federal government, the executive and legislative branches, and by narrowly interpreting rules on who has standing to sue so that politically disgruntled actors cannot go to court to litigate policy disagreements with the government under the guise of a legal dispute.,
All of this was essentially tossed aside in the student debt decision. Instead, Roberts’s decision relies on a legal doctrine that did not exist until he made it up last year. Under this new so-called “major questions doctrine,” the Court is now free to disregard what used to be the ordinary rules of statutory interpretation that govern executive agency action if enough justices believe the “economic and political significance” of the asserted authority passes some undefined threshold. In which case, the agency must act “pursuant to a clear delegation” from Congress. In other words, if the conservative justices believe that the federal government has overreached as a policy matter, then they apply a narrower and less forgiving standard of review.,
The conceptual framework is a recipe for what Roberts and the five other conservative justices did in Biden v. Nebraska. throwing out government programs if they want to.,
The second major ruling from the Court on Friday was written by Justice Neil Gorsuch, joined again by the five other conservatives. 303 Creative LLC v. Elenis involved a website designer who said that she plans to make websites for couples who are getting married. She has yet to actually do this, but as Gorsuch writes,
“she worries that, if she enters the wedding website business, the State [of Colorado] will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.”
What this really means is that the state might actually enforce an anti-discrimination statute that prohibits businesses from denying “the full and equal enjoyment” of their goods and services to customers based, among other things, on their race or sexual orientation. In other words, the state might force the designer to comply with its civil rights laws by creating websites for same-sex couples as well as heterosexual couples.,
That would, of course, fall well within a long line of jurisprudence since the civil rights era that holds that people who run businesses cannot pick and choose their clients based on their personal prejudices, whether it is because they do not like Black people or, as in this case, because they are supposedly adhering to their religious views in discriminating against gay people.
Gorsuch’s analysis, however, goes something like this:
The designer’s beliefs are “a sincerely held religious conviction.” The creation of a wedding website is a form of speech, a unique creative process that also reflects the personal expression of the designer (insert eyeroll here, particularly if you have ever actually seen a wedding website in your life). Thus, forcing the designer to comply with Colorado’s civil rights law would violate her First Amendment rights because a state cannot “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead.”
You might be tempted to view this as a neutral and principled extension of the Constitution’s accommodation for religious preferences, but some actual facts are useful here. As Xiao Wang, a legal analyst from Northwestern Law School, recently explained, the conservative justices have made it much easier in recent years for litigants to invoke their religious beliefs as “a ready path to disobey laws without consequence.”,
In fact, these sorts of claims “have proliferated in recent years, and plaintiffs have often won.” Meanwhile “the burden of proof for the government, that it is not unduly interfering in religious practice, has become much harder to prove.” In other words, the scales have tilted in favor of religious objectors and, in particular, conservative Christian objectors.,
The result is something like a civil rights cheat code: You can evidently refuse to comply with all sorts of laws if you can devise some religious claim to justify your position.,
In 2005, Supreme Court Justice John Roberts used a metaphor at his confirmation hearing that has often been praised and repurposed since, but that was misleading even then. His role as a judge, he said, “is to call balls and strikes and not to pitch or bat.” More recently, the phrase has come in for some very well-deserved mockery as the Court has continued its sharp rightward turn following Trump’s appointments to the bench.,
On Friday, the conservative majority, Roberts included, demonstrated just how hollow his proclamation was back then by tossing out one of Biden’s signature domestic policy initiatives on the basis of a legal doctrine that they made up about half an hour ago, and by blowing a gigantic and easily-gamed hole in our country’s civil rights laws. Meanwhile, Biden himself seems to have belatedly discovered just how radical this Court actually is, notwithstanding his administration’s decision to take a pass on any meaningful effort at Court reform.,
Now that they have thrown out a central pillar of his domestic policy agenda, perhaps he will rethink matters.
well, just to continue the dialogue re Supreme court making it up as it goes along, Justice Jackson has an essay in The Guardian which makes the case for affirmative action better than i could. i refer you to it. Meanwhile the “conservatives” who like to claim the Constitution must be understood it terms of the beliefs of the people at the time it was written, do not seem to care so much about the beliefs (intent) of the persons who wrote the Civil Rights act, finding, it seems, that prohibiting discrimination against white people was what they had in mind. making as much allowance as i can for differences of opinion, I find Roberts understanding of the purpose of affirmative action ludicrous. and i do hope to see some pushback,,,or at least flagrant disregard of this Court’s rulings until we get some honest Justices.
i do hope to see some pushback,,,or at least flagrant disregard of this Court’s rulings until we get some honest Justices.
[ Does the writer understand that this “hope” means undermining the Constitution? Also, accusing the justices on the Supreme Court of being dishonest because we disagree with ruling is destructive of a respect for law. ]
ltr
i have no respect for laws made by people with evil intentions.
i have no idea how to solve the problem of “do i disagree with them because they are wrong or just because i disagree with them?” in the real world we have to make choices. did you think disagreeing with hitler was something we could agree to disagree about and we need to kill jews because it’s the law?
i think the American Constitution was the greates attempt to manage disagreements that we have come up with so far. But even James Madison understood that there might come a time when “necessity” would overrule the Constitution. and that was before we had much of a chance to see how it could be twisted by people who would use it to destroy it.
i have no respect for laws made by people with evil intentions….
[ What a horrid comment; truly horrid. ]
Biden offers alternative student debt relief plan that would remove immediate threat of default
Boston Globe – June 30
President Joe Biden vowed Friday to push ahead with a new plan to provide student loan relief for millions of borrowers while blaming Republican “hypocrisy” for triggering the day’s Supreme Court decision that wiped out his original plan.
Biden said his administration had already begun the process of working under the authority of the Higher Education Act of 1965, which he called “the best path that remains to provide as many borrowers as possible with debt relief.”
In the meantime, since student loan-payment requirements are to resume in the fall, the White House is creating an “on ramp” to repayment and implementing ways to ease borrowers’ threat of default if they fall behind over the next year.
The president said the new programs will take longer than his initial effort would have to ease student loan debt.
Speaking to reporters at the White House, Biden said borrowers now angry about the court’s decision should blame Republicans. He is trying to stay on the political offensive even as the ruling undermined a key promise to young voters who will be vital to his 2024 reelection campaign.
“These Republican officials just couldn’t bear the thought of providing relief for working class, middle class Americans,” Biden said. “The hypocrisy of Republican elected officials is stunning.”
Trying to place staunch opposition to student loan forgiveness on the GOP could allow Biden’s reelection campaign to maintain the issue as one of strength in the short term. But that may ultimately offer little solace to 43 million Americans who benefited from the initial program and will now have to wait for its replacement to take shape.
“We do not want to go into excruciating debt for our entire lives to enhance our education,” Voters of Tomorrow, a Gen Z-led organization that promotes the power of young Americans, said in a statement.
The White House efforts to forgive loans were an attempt to keep a Biden promise stretching back to his 2020 campaign to wipe out student loan debt — an idea that was especially popular with young voters and progressives. Both will be key for the president in next year’s presidential race but may be less energized about supporting him after the high court’s decision.
Wisdom Cole, the national director of the NAACP Youth & College Division, said Black Americans helped put Biden in the White House, so there’s an obligation for him to “finish the job” with his pledges to provide relief for borrowers.
“It’s going to have a huge impact on the next election,” Cole said, adding, “If we don’t do this, we continue the cycle of seeing our elected leaders make promises and not follow through.”
A May poll from The Associated Press-NORC Center for Public Affairs Research found that 43% of U.S. adults approve of how Biden sought to handle student debt, similar to his approval rating overall of 40% in the same poll.
The poll suggested that Biden gets credit for his handling of the issue among young adults in particular. Fifty-three percent of adults under age 30 said they approved of Biden’s handling of student debt, compared with only 36% who approved of his job performance overall.
Senior administration officials said Biden’s top advisers had met frequently lately to prepare for a high court ruling on student loans. They also spoke with advocates and allies in Congress. After Friday’s decision, Biden met with top advisers and ordered them to immediately begin implementing a new loan plan. …
Biden offers alternative student debt relief plan that would remove immediate threat of default
Boston Globe – June 30
President Joe Biden vowed Friday to push ahead with a new plan to provide student loan relief for millions of borrowers while blaming Republican “hypocrisy” for triggering the day’s Supreme Court decision that wiped out his original plan. …
Let’s just all it what it is ‘Republican hypocracy’.
At $400 billion, I for one am not upset that Congress should get involved. Not arguing it tremendous legal reasoning on my part, just that it’s so big and not very focused on the actual emergency. I’d ask Congress to reform the loan program quite radically and then go back to see what can be done for those in deep trouble under the old rules. To spend $400 billion but leave the old system pretty much untouched seems kind of demented.
Eric
sounds about right to me. I have become convinced that the program was flawed from the start because either the Congress was not paying attention, or they were listening too hard to the usual bad guys. as such, the loans should just be written off. and a normal bankruptcy law should be restored. and we need to think a little harder about just what education we as a country are willing to pay for.
Meanwhile I am not just exactly sure who would be hurt by writing off the loans. There is a difference between “money spent” and money money to be spent. This is really a lack of knowledge on my part and not a political stance.
You can ask but this Congress is not going to listen.
Student Loan Forgiveness Supreme Court Rules 6-3 Against Biden Plan
NY Times – June 30
The proposed cancellation of more than $400 billion in student debt would have been one of the most expensive executive actions in U.S. history. President Biden vowed to try again. …
Biden offers alternative student debt relief plan that would remove immediate threat of default
Boston Globe – June 30
Student Loan Forgiveness Supreme Court Rules 6-3 Against Biden Plan
NY Times – June 30
Whatever happened in the student loan ‘business’ that allowed astronomical interest to be tacked on to principal out, those who pulled this off ought to be locked up forthwith.
There is no excuse for this. It makes no sense for taxpayers to be stuck for all this interest, nor the loanees either.
Fred:
Welcome to the club of “no excuse for this.”
So far, the guv’mint seems to be intent on somebody paying off all those crazy interest charges, as much as relieving the debtors of the need to pay off their debts. Even with there being much more interest owed than principal. That’s wrong.
Dobbs
I am not so sure that interest being more than principle is the problem.not unusual in a home mortgage..even if you make all the payments on time. thing is…ith student loans there is no collateral, so interest on interest is not necessarily predatory. neither is no-recourse to bankruptcy at first glance. but no recourse…predatory or not…is so destructive that it should never have been written into the law. fatal to borrowers, not good for the economy…or the society. bankruptcy has been the necessary safety valve against debt peonage for over a thousand years in societies where it was understood.
but yes, the student debt law was badly written and enforcing it is wrong.
i still do not know who would be hurt by just cancelling the debts.
The debtees (?) need to eat the loss of interest owed to the greatest extent possible. Those were usurious loans.
Dobbs
speaking loosely they were…or maybe even speaking fundamentally they were.
but I think [i do not know] that technically the original interest charged was not usurious, but by the magic of complexity* (and dishonest intentions) they have become so. If the (naive) expectations of the borrowers of the value of education had been met and they were able to pay off the loans on time, they would have been a reasonable way for poorest people to pay for education that brought them into reach of a middle class income. But even without fraud by the “educators” the expectations of the borrowers were not realistic, and it would have been an appropriate role of government to protect the borrowers from their own lack of realistic expectations as well as the dishonest of the providers.
*Congress is pretty good about writing laws that obscure the ultimate responsibility of the writers by assigning it to the victims in the fine print.