A rogue court, an arm of the Republican Party, the primary sledgehammer for the conservative agenda: we’ve heard various versions of the same lament about America’s judiciary, and I agree with the outcry. But a more fundamentally concerning conclusion about the current Supreme Court, derivable from the three major decisions released last week (on affirmative action, providing business services to LGBT customers, and student loan debt cancellation), is a different one: the federal judiciary is openly behaving as a policy agent of plutocracy.
I’ll single out the student debt case in particular, Biden v. Nebraska, as one of the Court’s most blatant abuses of judicial power in its recent years of conservative hackery. The case was nothing short of a desperate, hardly hidden intervention on behalf of right-wing interests with a singular goal of denying the Democrats a political victory at the direct expense of working-class students. Ideological calculus dressed in legalese struck down over $400 billion in debt forgiveness to 43 million young people who continue to be crushed by the ever-rising costs of higher education—a fundamental requirement to make a comfortable living in today’s competitive U.S. economy.
One need not be a fan of the Democratic Party nor a cheerleader of the Biden Administration (I’m neither) to read between the lines here. A simple run-through of the case—its basic facts, the Court’s procedure in hearing it, and the logic of the final decision—will suffice in proving that the emperor has no clothes. As with most stories, we start at the beginning; in the case of litigation, that beginning involves plaintiffs and defendants. A month after President Joe Biden enacted his student loan forgiveness scheme by executive action, the Republican attorneys general of Nebraska, Missouri, Arkansas, Iowa, Kansas, and South Carolina sued in the Eastern District of Missouri to strike down the policy. The choice of Missouri was a blatantly political move: the plaintiffs needed to manufacture a justification for legal standing to give their blatant political action the veneer of judicial soundness. To have standing, the plaintiffs needed to prove actual injury from the policy; the suing states saw Missouri’s state-established student loan servicer, MOHELA, as their best bet for proving injury. They contended that MOHELA would lose revenue from the Biden policy, and as a result, the state of Missouri itself would suffer due to ambiguous financial connections between the entity and state government.
What followed was a court approval procedure fueled by pure deceit and political chicanery.
In the Eastern District of Missouri, Judge Henry Autrey (interestingly, a Bush-appointed judge) dismissed the case for lack of standing. Yet after an appeal from the plaintiffs and an injunction, the Supreme Court conveniently decided that the case warranted a writ of certiorari: the highest court in the land would hear the case before judgment from any lower court. A case where it wasn’t even clear that the plaintiffs were, in fact, “real” plaintiffs, was suddenly a completely legitimate case before the Supreme Court—so legitimate, apparently, that it warranted skipping multiple steps in the legal process.
Sketchy wouldn’t even begin to describe the situation. Indeed, Justice Elena Kagan is entirely on the money when she plainly writes in her dissent: “The Court’s first overreach in this case is deciding it at all.”
The consequences of the writ are manifold—not least of which is that an institution with three justices appointed by the most extremist presidential administration in recent history ended up hearing the case. Most outrageous of all is that the case was heard before the basic facts could be established—basic facts that were extremely germane to the outcome of the case. Unsurprisingly, rushing to hear Biden v. Nebraska allowed the plaintiffs to build a case on accepted lies.
MOHELA would not, in fact, suffer injury from Biden’s proposed policy. It’s why the entity refused to join the plaintiffs in their own case, and its own internal memo demonstrated that the servicer’s revenues would actually increase after the implementation of the Biden plan, not decrease as the plaintiffs claimed. The legitimacy of the state plaintiffs’ estimates should have been established in a court of law, following proper procedure before being heard in the Supreme Court. The writ of certiorari prevented this from happening; the state government’s estimates were accepted as official by both plaintiffs and defendants.
Now comes the ruling itself. Chief Justice John Roberts’ personal disdain for debt relief is not hard to miss in his written opinion for the majority. In a particularly unhinged segment that directly invokes historical class warfare, Roberts compares Biden’s student debt cancellation policy to the French Revolution (page 15 of the written opinion). Perhaps this is merely meant as an innocuous comparison to clarify a legal point about the distinction between the word “modification” and the concept of wholesale upheaval. But invoking one of the most significant moments in the history of radical politics? He’s revealing his anxieties, conscious or not.
In another cringe-worthy moment of smarminess rather than legal rigor, Roberts refers to the legal authority of Democrat and former Speaker Nancy Pelosi, pointing to one of her comments in 2021 stating that the President does not have the authority to forgive debt. It adds nothing to his argument; Pelosi’s opinion is not the law. It’s merely meant as a political “gotcha” moment—the kind that reveals to the general public what’s really going on here.
Paul Krugman, in his columns on economic policy, often uses the term “Calvinball” when addressing any position that requires a constant adjustment of debate parameters in order to sustain itself (the particularly hilarious origin of the word can be found here). It’s a game without rules, a constant shifting of the goalposts. Calvinball is the most beloved game of the Supreme Court’s six conservative justices, whose appointments were praised by Republicans on the grounds that they were opponents of “judicial activism” and “legislating from the bench.” They would return the judiciary to its rightful, restrained place, forcing Congress and the White House to do their jobs in crafting and implementing policy instead of abdicating their responsibilities to the Court. But now, they’ve changed the rules: now, they think it’s the job of robed unelecteds to make policy for the United States.
The Department of Education, who is responsible for lending to and managing the loans of millions of students (and, mind you, has already exercised the power to forgive student debt in the past), suddenly doesn’t have the ability to alter its own lending scheme under existing law that explicitly states it can “waive or modify” the program during conditions of national emergency. Shoddy economic estimates to manufacture standing for fake plaintiffs is okay, but modifying the current lending program is apparently a step too far, just because it applies to the majority of borrowers. Do you see the issue here? We can quibble all day about dictionary definitions and still come to different conclusions. Either way, the actions of the Executive here do not amount to the kind of power abuse that would require the Court to weigh in. Restraint is the only just path in such a situation.
The case is demonstrative of the ways in which law, as practiced, is not just entirely divorced from real-world consequences, but divorced from the real-world motivations that would not hold water if the American legal system was practiced as intended. We all know the real reason why the state attorneys general sued, but it’s unimportant on the floor of the Court. Somehow, none of the justices in the majority will raise an eyebrow that political agents are perverting the legal system to strike down laws they don’t like. But they will raise eyebrows at the policy itself, and the consequence is that 43 million students will be more financially insecure. This kind of legal scrutiny of policy only ever seems to go one way. The pandemic PPP loan forgiveness scheme administered by the Small Business Administration was billions of dollars larger than Biden’s student debt relief program, but it never faced similar legal scrutiny. The benefits of PPP loan forgiveness were mostly felt by business owners and shareholders; the top quintile of household income received over 75% of the benefits. In the case of student debt relief, 75% of the benefits would have been felt by households making less than $88,000 per year—the middle class. Only one group had to worry about judicial intervention.
If the unelected justices of the Supreme Court continue to craft economic policy like this, it will shatter the illusion that we are living in anything but an oligarchy.
NOTE: Student debt is an issue I have been following closely ever since modeling various student loan repayment plans for a math project in 8th Grade. I hope to get out a detailed analysis of Biden’s revised student debt plan soon.
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