Jonathan P. Baird

More than any single case, the biggest story about the Supreme Court has been the exposure of its blatant corruption and the failure of Chief Justice John Roberts to respond in any meaningful way. The ProPublica stories about both Justice Thomas and Justice Alito are damning.

Justices paling around with billionaires, taking lavish gifts and vacations and not reporting them and then deciding cases in favor of the 1% is not a great look. It is no different than politicians getting big bucks from their corporate donors and then crafting policy that delivers and serves the interests of the super-rich. Both are the victory of dark money.

Roberts’ failure to act stands in stark contrast to the behavior of earlier Chief Justice Earl Warren. Over fifty years ago, when Justice Abe Fortas acted in a way much less ethically compromised than Justice Thomas now, Warren engineered Fortas’s removal from the Court even though losing Fortas was a deadly blow to the then-liberal majority. 1969 was actually the last time the Court had a liberal majority.

With supreme arrogance, Roberts has looked the other way and pretended no one will notice the stench. Even the minimal step of a binding ethics code is too much. Justice Alito has made it clear that he thinks the Court is utterly beyond accountability.

Keeping the 6-3 conservative supermajority intact transcends ethics. This Court is just at the beginning of the conservative counter-revolution. After Dobbs and the taking away of women’s reproductive freedom, who knows where their trajectory will lead. Will they take away the right to contraception? gay marriage ? Will they expand gun rights? eliminate separation of church and state? further weaken unions? increase discrimination against LGBTQ people? Stay tuned.

The corruption mess aside, the Court issued some other major decisions this last term that demand response. You could take your pick which case is most disturbing but I would pick the student loan case, Biden v Nebraska. At the same time some billionaires pay to get rules and laws rigged in their favor, the Court decided in a way that took away debt relief from 43 million people.

No one can accuse this Court of being the peoples’ Court. It is the billionaires’ play thing. Tracking how private groups use anonymous donations to advance their interests at the Supreme Court could be a full-time detective job.

President Biden’s student loan relief plan would have forgiven up to $20,000 in debt to millions of student loan borrowers.The plan cancelled $430 billion in debt and it would have totally erased debt for 20 million borrowers. The median burden on all outstanding debt would have been dramatically lessened, especially helping those from low and middle-income families. Any way you cut it, the plan was significant.

The Biden plan was premised on the Higher Education Relief Opportunities for Students (or Heroes) Act of 2003. The law gave the Secretary of Education broad and sweeping power to modify or waive any provision of the student loan law in the context of a national emergency (which COVID most certainly was).

The Trump Administration had previously paused student loans, including the accrual of interest, during the COVID emergency. No one kicked when Trump invoked the Heroes Act but the Court now says Congress exceeded its authority when Biden followed up.

Writing on behalf of the Court’s conservative majority, Roberts offered a tortured reading of the statute to explain why “modify” and “waive” don’t have their plain meaning. It is hard not to see this as anything but black-robed partisan Republicans denying a Democratic president a political victory.

The case is an overreach with the Court majority acting like it is Congress, a policy-making body. To quote from the dissent by Justice Elena Kagan:

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

One of the strangest aspects of the case was that none of the states that sued the Biden Administration had any personal stake in the Secretary of Education’s loan forgiveness program. It is elementary constitutional law but to have standing, you must have been injured. Without that, there is “no case or controversy”.

The Supreme Court got around the standing problem in the most tenuous way imaginable. It found MOHELA, a separate loan servicing public corporation based in Missouri provided standing even though MOHELA did not bring any case. Nor did it file an amicus. It was not clear MOHELA suffered any injury or wanted anything to do with the case but the Court wanted to get to the merits.

This was very much like the 303 Creative LLC v Elenis case where no gay person asked the plaintiff to design a gay wedding website and the Court ruled on a hypothetical. It used to be that the Court required a case with an injury but no more. If the Court doesn’t like a policy, it flexes its muscles and makes a case up.

At oral argument, Justice Alito expressed his view that student debt relief was not fair. Like a spiteful old person, Alito showed his out-of-touchness. Since 1980, the total cost of both four-year public and four-year private college has nearly tripled even after accounting for inflation. Many students have had no choice but to borrow more if they want to get a degree.

The debt burden is like an extra mortgage and very different than when someone like Alito was in college and debt was much more affordable. It is entirely appropriate for the government to be coming up with plans like what the Court rejected. The Biden Administration must counter with an effective Plan B for student loan relief.

For far too long, liberals and progressives have ignored the conservative court juggernaut and the consequences are now too obvious. Court reform must move way up on any liberal/left to-do list.

The conservative majority overreach is not likely to stop any time soon.