Biden v. Nebraska

You'll hear argument first this morning in case 22506, Biden v.

Nebraska.

Hey everyone, this isn't Leon from Fiasco and Prologue Projects.

It's Rachel.

I produce the show.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Biden v.

Nebraska.

This is one of the infamous student loan cases from the most recent term.

We are following some breaking news out of Washington.

The Supreme Court struck down President Biden's plan to cancel up to $20,000 in student loan debt for millions of Americans.

The case questions whether the Secretary of Education has the authority to provide debt relief to student loan borrowers, and it's been fraught with problems from the start.

The respondent's case for standing is flimsy.

The holding overrides the will of Congress to assert the court's conservative priorities.

And as a result, the light that many Americans saw on the horizon has been snuffed out as their hope for debt relief evaporates.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have weighed down our nation, like student debt weighing down a liberal arts student's finances.

I'm Peter.

I'm here with Michael.

Hey, everybody.

And Rhiannon.

Hi.

It hits close to home.

Sometimes I go on the nose topical.

Maybe a little too on the nose in this case.

Today's case is Biden v.

Nebraska, probably better known as the student loan case.

Yep, just dropped.

Fresh.

Last year, the Biden administration authorized the forgiveness of $10,000 of student debt for 43 million student loan borrowers, $20,000 for Pell Grant recipients.

But the Supreme Court, in a six to three decision just at the end of this term, held that the administration did not have the authority to forgive the loans,

thereby functionally reimposing the debt on borrowers.

Yes.

Re,

we're going to go straight to you here.

Yeah, let me tell you about one of the stupidest fucking lawsuits I've ever had to read about.

And I've been doing this podcast for over three years.

I think an interesting aspect of the background here is that you have congressional action.

You have Congress passing a law.

And then you have executive action.

You have the executive branch acting pursuant to that law.

And then what do you know?

The third fucking branch, the Supreme Court comes in and it says, no, no, no, no, no, no, no, no, no, we're going to shit all over everything, right?

Like if it wasn't so fucking loser energy sad, it would be kind of interesting.

Anyways, back in 2003, let's start with that congressional action.

Back in 2003, Congress passed the HEROES Act.

HERO stands for Higher Education Relief Opportunities for Students, HEROES Act.

Right up top, at the very beginning of this statute, you can look it up.

It says the purpose of this act is to, quote, provide the Secretary of Education with specific waiver authority to respond to a war or other military operation or national emergency.

The idea with the HEROS Act is that student borrowers have these loans they have to pay back, of course.

But a national emergency can happen.

You know, back then it was September 11th, the country going to war, and that can affect people financially to a point where paying back those student loans to the government is a real negative financial burden.

So Congress gave the Secretary of Education power to waive, meaning cancel, student loans when a national emergency happens so that during a time when people are struggling, there is authority in the executive branch to lessen that student loan burden, right?

So that at least in that regard, people are not worse off financially.

Bree, how dare you assume that wave means cancel

in this context?

You're getting a little ahead of yourself there.

We'll talk about some definitions.

I know some very powerful lawyers who would disagree.

Right, who think otherwise?

So the HEROES Act is passed by Congress in 2003, just a couple of years after 9-11, and gives the executive branch this authority.

But it also spells out pretty quickly that this is broad authority.

And the Secretary of Education can act quickly to do this, right?

Here is this sweeping language in the law.

The Secretary of Education can, quote, waive or modify any statutory or regulatory provision applicable to the student financial assistance programs as the Secretary deems necessary in connection with a national emergency.

Again, that says waive or modify any provision of student loans, right?

Now, in addition, the law also allows the Secretary of Education to act quickly on this.

Usually, like if a federal agency wants to create new policies, it has to go through what's called a notice and comment process before the policy can take effect.

A notice and comment process means literally giving notice to the public that they are thinking about proposing a new policy, allowing public comment.

You know, Congress might have comment on it.

That process can take months or even longer, right?

But the HEROES Act permits the Education Secretary to skip that process, to skip notice and comment altogether if the Education Secretary is modifying or forgiving loans under that statute.

On top of all of that, I'm just explaining all of this to like really ground us in the idea of the statute being really broad and sweeping, right?

On top of all of that, the law explicitly allows the Department of Education to give out relief on a broad basis, like in terms of who gets the relief, relief, right?

The law says that the Secretary of Education is not required to waive or modify loans on a case-by-case basis, meaning it can be en masse, right?

The Secretary of Education can do this for thousands of student borrowers, millions of student borrowers at once.

The law specifically says they do not have to do this on a case-by-case basis.

They can act en masse.

in loan forgiveness programs to waive or modify those loans.

And finally,

even on top of that, the HEROES Act says that other areas of federal law and other federal agencies are not to be interpreted to limit the Secretary of Education's authority here, right?

So if there's another law about student loans, if there's another law about borrowing, those laws cannot be interpreted to limit the HEROS Act, cannot be interpreted to limit what the Secretary of Education can do under the HEROSE Act.

This language is all very clear in this fucking law, okay?

So the first iteration of the HEROES Act that is kind of relevant to this case that's invoked in this kind of current era in the past few years is actually during the Trump administration.

When the pandemic started and a national emergency was declared, the Secretary of Education under Trump paused student loan payments, right?

All of us know that.

All of us with student loans, we know that we have not had to pay student loans during the national emergency of COVID.

Not only paused student loan payments, but paused the accrual of interest on student loans as well.

That, again, was all under the power given to them by the HEROES Act.

That is why the Secretary of Education was allowed to do this because of the HEROES Act.

So, cut to last year and the Biden administration.

There has been a ton of organizing for student loan forgiveness broadly in the public.

Biden and most of the Democrats, in fact, campaigned on forgiving student debt, if we remember that.

But the Biden administration announced last year that the pause on student loan payments would be lifted.

But the administration announced that it would forgive $10,000 in debt for individuals earning less than $125,000 per year or $250,000 per household.

And if you're a Pell Grant recipient, like Peter said up top, the forgiveness amount would be $20,000.

Now,

What would have resulted had this plan gone through?

That would have canceled $430 billion in federal student loans.

20 million borrowers would have had their debt completely erased, their student loan debt.

And the median amount owed by the rest of student loan borrowers, some 23 million people, that median amount owed would have dropped from what it is now, $29,000 to $13,000.

This would have massive effect

on student loan borrowers, people who have student loans.

So what happened when Biden announced this plan?

Six states, including Nebraska, sued the Biden administration, saying that this was beyond the authority that the HEROES Act gave to the Department of Education.

The case made its way up the appellate system.

Now, Nebraska as one of those six states, that's why the case is called Biden v.

Nebraska.

A lot of this case is actually about Mohila, a loan servicer that exists in Missouri.

So most of the discussion is about Missouri, but Nebraska is one of the states that sues, and that's why the case is called Biden v.

Nebraska.

So the Eighth Circuit issued an injunction that's a court order that stops the plan from going into effect, essentially ruling with the states, right?

And the Biden administration appealed that ruling to the Supreme Court.

That's how we get it in front of the six psychos.

All right.

So first we need to talk about standing.

The big issue for the challengers to Biden here is that their claim to standing is very weak.

In order to have standing, to challenge a regulation like this, you need to claim that you were injured.

And it's hard to claim that you've been injured by a program that forgives student loan debt for other people.

The obvious quote-unquote injured party here would be the federal government.

And it's their program.

So who's actually injured?

Now, there are a handful of random individuals who sued because they did not receive loan forgiveness.

And basically, they were mad.

The court tossed their suit out, saying that that was not enough to establish standing.

But then you had the state of Missouri, God, along with a few other states, but the court really hones in on Missouri, which claims that it's injured by Biden's loan forgiveness plan in a very roundabout way.

Missouri says that if the debt is forgiven, its state loan authority, Mohella, will generate less revenue.

And if it generates less revenue, it will pay less money into Missouri's higher education fund.

Shoddy ass argument.

It's a shoddy argument.

There are a couple problems.

It's very roundabout, right?

Yes.

An argument about a theoretical injury to a subsidiary state entity that might trickle up to the state.

The other problem is that it means that Missouri is not the directly injured party, even in its own telling, right?

Mohela is.

Right.

And Mohala is a separately incorporated entity.

It is a public public corporation.

It has its own leadership, for example, who could readily bring a lawsuit on their own behalf if they wanted to, but they chose not to.

And in fact, it appears they were not even aware that Missouri was filing the lawsuit until after it was filed.

And

they're not necessarily in agreement with the position that the loan forgiveness plan will reduce their revenue.

So, Mohella is the party that actually might have standing here.

Now, Missouri claims that this distinction is largely irrelevant because even though it's a separate public corporation, Mohala is under the state's control.

But it was Amy Coney Barrett who pointed out in oral argument, if that were really the case, if they were really under your control, Missouri, why didn't you just make them?

bring the case right

why didn't you force them right to bring the case yeah the obvious reality here is that missouri is not bringing this case because it thinks it's injured.

Missouri is bringing this case because politicians within the state do not like the student loan forgiveness plan.

Period.

And yet the court lets them bring the suit regardless, essentially approving of this weird, like daisy chain of inferences and transparent falsehoods that you need to accept for Missouri to have standing here.

Exactly.

Yeah.

It's like imagine someone owes you money and they're getting a divorce and you sue to invalidate your state's no-fault divorce laws because that divorce is going to impact this person's ability to pay you back.

It's fucking nuts as a theory of standing.

Yeah.

Absolutely nuts.

Right.

This is the second time this term.

Second time in two weeks.

That the Supreme Court basically completely ignored that the challenger to a law did not have standing.

The other was 303 Creative v.

Elenis, which we did last week, where we had a lady basically being like, Well, what if a gay person asked me to make a website for them?

Right.

And the court was like, Well, has it happened yet?

And she was like, Well, no.

And they were like, That's okay.

Yeah, that's right.

That's all right.

Yeah, let's take this case anyway.

Like, do you make websites?

And she was like, No, not that either.

Yeah.

No wedding websites.

Not yet.

But what if I wanted to?

But who knows, maybe one day.

Right.

Completely hypothetical.

This is very, very similar.

So we're forced to put the question of standing behind us, and we get on to the merits of the case, which is the question of whether the Biden administration, through its Department of Education, has the authority to forgive student loan debt in this instance.

The HEROES Act, again, a piece of legislation passed in 2003 that authorizes them to waive or modify any provision applicable to the student loan program.

during national emergencies.

Now, on the surface, you might think that this is simple.

The entire purpose of the law is to allow for the Department of Education to tinker with student loan obligations in cases of emergencies.

It was an emergency, COVID, right?

Right.

The law expressly says that the agency can waive or modify any provision of the program, open and shut.

Yes?

Yes, this is so clear.

Now, enter the major questions doctrine, which we've talked about before.

Now, usually Congress writes a law granting power to administrative agencies like the DOE,

and the court will defer to that agency's interpretation of the law.

This is what's known as chevron deference.

But conservatives don't like this

because they don't like government regulation and they don't like administrative agency power generally.

So this court invented the major questions doctrine, which says that the court will not defer to agencies on what they call major questions, questions of major political or economic significance.

Now, what does it actually mean for a question to be major?

What it means in practice is that the court will strike down agency actions that conservatives don't like.

That's it.

Yeah.

Is it on Fox News a lot?

Is it on Fox News a lot?

Yeah.

That makes it a major question to John Roberts and Sam Alito.

Yeah.

And this is a response to this idea that Peter mentioned of chevron deference, which has been sort of the dominant mode of judicial interpretation of agency action for the last 30 plus years.

So Chevron deference is basically when someone challenges an agency action and says that they don't have the power under their organizing statute to do what they're doing, to set you know, an emissions standard for automobiles at a certain rate or whatever.

The rule is if there's any ambiguity in the statute that courts generally will defer to the agency's interpretation.

They say the agencies have the expertise and the knowledge, and these are the politically accountable branches, Congress who passed the statute and the executive branch who staffed the agency.

And so questions are resolved in their favor.

The major questions doctrine is almost the exact opposite.

It's even when there isn't ambiguity in the statute, even when the statute is pretty clear that the agency can do what it's doing, the conservatives are still stepping in to stop them, which is how you know it's some made-up bullshit.

They've used this made-up doctrine to end the COVID eviction moratorium, to strike down OSHA rules requiring vaccines for certain workers, and to vastly limit the scope of the EPA.

And now they are coming for student loan forgiveness.

That's right.

Before we continue, just to sort of highlight this, to illustrate how sort of arbitrary what a major question is and isn't, I think it's worth noting that the student loan pause, the uncontroversial student loan pause that nobody questioned.

That happened under the Trump administration.

Yeah.

Costs an estimated $5 billion

a month.

So running on $180 billion

so far.

So when they talk about the cost of the student loan forgiveness program being very high.

And that's what makes it supposedly a major question that they're going to decide.

And look, of course, the student loan pause never came up before the court or anything like that.

But part of that was because it was uncontroversial, right?

It wasn't on Fox News all the time because it was initiated by the Trump administration.

And so, of course, conservatives aren't trying to hose

the executive branch when it's controlled by conservatives, right?

They're all about executive power when it's a Republican in power doing something popular.

It's only when it's a Democrat in power when they're like, we need to trim their sails a bit.

We need to rein them in.

Is it really that different from the PAWS?

The $180 billion plus three years running program?

It's more holistic than that, though.

When you look at a question, is it thick?

Right.

Can you wrap your arms around it?

You know?

Yeah.

Right.

Can you lift it off the ground?

No problem.

These are the types of high-level questions that need to be running through your brain, running through your mind space when you're thinking about whether a question is major.

How big is that question?

Now, it should go without saying that the court decides that this is a major question.

This question.

So major, Dodge.

I mean, it's so major.

So fucking major, bro.

Oh, my God.

$430 billion in potential relief.

This is, ooh,

folks, you know it's major.

I'm not even going to tell you the analysis because you know it already.

It's so major.

That's exactly what it's like reading this opinion.

Do I even have to say it right now?

Right, right.

So

we then move on to like the interpretation of the statute now that we've established that we're not going to be deferring.

to those fucking eggheads over at the Department of Education.

Right, uh-huh.

This is a major question.

This takes John Roberts.

Right.

Again, the law says that Biden can waive or modify any provision of the student loan program.

And what the court does here is just use an impossibly narrow interpretation of that to conclude that he does not have the authority to forgive debt.

It's unreal.

It's.

All right.

Let's walk through it, shall we?

Robert says that modify, the term modify, is only meant to include smaller changes.

This is too large of a change to be called a modification of the program.

Yeah, modify has to mean something incremental, a small change, a minor change to John Roberts.

He says that this would create, quote, a fundamentally different loan program.

But would it?

Is the program fundamentally different?

Or do some people just owe less money than they used to?

How does that change the fundamental dynamic going on in this program?

Exactly.

People still get student loans the same way, right?

Mohila and whoever else services your loans, right?

You still pay back what you owe the same way.

It is decreasing people's student, some people's student loan debt

by $10,000.

You are not fundamentally transforming a fucking thing.

I mean, all of the machinations of the program stay exactly where they were.

Right.

It's just that the balances go down a bit.

Yes.

I don't understand how you could possibly say that that is fundamentally changing the program.

I might understand this argument if Biden was trying to give borrowers Bitcoin or something, but I don't see how reducing debt fundamentally changes the program.

I just don't.

But modify is only half the battle.

The law also says Biden can waive the provisions.

Any provision.

Waive any provision.

Right.

And if waive in the context of a student loan program doesn't mean forgiving student loans, right?

Waiving the students' obligation to pay their loans back.

Right.

Then what does it mean?

Now, Robert says that waiver is only about the ability to nullify provisions entirely, which seems to imply that Biden could forgive student debt in full,

but can't do it partially.

So this is somehow too big to be a modification.

Right.

Too small to be a waiver.

What kind of fucking reverse Goldilocks shit is going on here?

I also like that your normal rules of statutory interpretation here lead you to Congress authorizing something much bigger than what...

the Biden administration did.

And yet, what the Biden administration did is such a major question

that we can't presume that Congress would have wanted the Biden administration to do a program as big as the one he did.

What?

Like, that's just like what's happening in John Harper's brain while he's learning that.

How is it possible?

How is it possible?

On top of that, can we talk about like the major question doctrine in the context of the Heroes Act does not make any sense?

No.

The entire purpose of the major question doctrine, like you just said, is that when an administrative agency does something large, then the court will say, well, hold on.

That's a big ass use of your power.

I bet that Congress didn't quite mean that.

And if they did mean that, they would have said it more specifically.

Right.

But the HEROES Act is about addressing national emergencies,

which you'd think

would sort of infer

that something major is going on.

Addressing national emergencies by changing the interest rate on your student loan from 6.7% to 6.65%.

This is what happens when you just make up a doctrine.

Yes.

Where it's like, well, yeah, but is the question major?

And it's like, whoa, whoa, whoa, the whole fucking piece of legislation is about granting discretion to the executive branch in cases of emergencies.

Exactly.

So, yes, they are aware that something major might happen.

That is the point.

If you couldn't do anything major with it, it wouldn't be worth shit.

Right.

That is what Congress is legislating for.

Something big is happening.

It's a national emergency.

And we are giving authorization to federal agencies to do XYZ when big stuff is happening.

It's the whole fucking point of the law.

Yes.

If there was ever a worse fit for the major questions doctrine, it's this.

It's a statute specifically delegating lots of discretionary authority to an agency in times of emergency.

Right.

It's so stupid.

It's so fucking stupid.

It's so fucking stupid.

Anyway, you liberal nerds thought you could trap John Roberts using standing doctrines and the plain meaning of words.

You are wrong.

This is a man untethered, untethered by such norms.

Roberts unchained, baby.

Yeah.

I fucking love reading these Roberts decisions where you just like have to circle back and be like, where was the thread of logic running through this?

I know.

Like, it's not like I don't agree with the logic.

It's like it's genuinely not there.

It does not hang together.

No.

I will say the modification thing, I guess I understand.

in the sense that it is like internally consistent.

It is ludicrous.

But then you get to the waiver part and you're like, what the fuck are you talking about, dude?

Absolute nonsense.

right whatever uh let's talk about amy amy coney barrett despite her very sharp questioning in oral argument as peter mentioned yeah which by the way is why a lot of people thought this might be a dub yeah because it looked like barrett especially but maybe kavanaugh too were skeptical of the claim to standing here right yeah and kavanaugh was also skeptical uh it sounded like of the merits argument yeah yeah he was like wave is pretty clear or was he trying to make friends in the liberal media Yeah.

He just doesn't want people to be mad at him.

So Coney Barrett writes this concurrence, and it's always a good exercise to ask yourself, like, what's the point of this concurrence?

Who's it responding to?

And who's it directed at?

She cites academic articles

very early on and Kagan's dissent.

And Coni Barrett is a former academic herself.

Kagan is a former academic.

And I think what you have here is someone who's very aware of the academic discourse around the major questions doctrine right now and is concerned about it.

Yeah.

Is concerned that if reasonable law professors are saying this is really stupid and out there or doesn't make a lot of sense, that that's going to filter up to politicians in the media and make them look like they are activists.

Or the next generation of law students, perhaps.

Yes.

Right.

And so this is very much aimed at academics.

So I'm not going to get super into the details of like what a substantive canon of statutory interpretation is.

You guys don't need to know or care.

But she tries to explain her view of what the major questions doctrine is.

And I think it's illuminating because what it is is

purposivism is the answer, which is not textualism.

In fact, is what textualism is essentially designed as a critique of.

There's some academics who are like, no, it actually means context, according to ACB and blah, blah, blah.

But I think that's a misreading.

I think what you have is her just doing bad purposivism.

So purposivism, the idea is give the statute the best reading, rather, that aligns with its overall purpose.

Right.

Why did Congress pass this?

Read it in that light, right?

Interpret it in that light.

And so the most natural reading of something, you know, sort of in a vacuum might not be the actual best reading of the statute with in mind what the goal of the statute is, right?

And that's basically what she says the major questions doctrine is.

And the reason it's sort of hard to scan is because she's trying to refashion purposivism.

as textualism.

And so it gets very muddled and confusing.

But worse is underneath all that is a descriptive claim about the world that you can evaluate like objectively which is this

common sense as to the manner in which congress is likely to delegate a policy decision of such economic and political magnitude this is a descriptive claim about how Congress legislates that says Congress is not likely to kick big decisions to agencies.

Right.

To which I say, what fucking planet are you from?

Because

Congress delegates shit to agencies, big questions to agencies all the time.

They don't want responsibility for anything.

They are the biggest fucking political cowards.

They try to kick as much to the presidents in the courts as possible.

There's social science, political science literature on this.

Anyone with a brain knows this.

Sure, maybe 20 years later, a new Congress might be like, man, I'm pissed that we gave this power to an agency and now this president from an opposite party is using it and I don't like that.

But that's not the question.

Right.

And they can change the law.

Right.

The question is, when they wrote the statute, did they delegate to the agency?

And the answer is almost always going to be yes, because the whole point of agencies is Congress doesn't want to deal with this shit.

And the whole thing with politicians is that he wants to avoid tough decisions, political hot button issues, whatever.

They don't want any of that shit.

They don't want the smoke.

We've talked about this multiple times, right?

The NLRA, the National Labor Relations Act, that delegates authority to the NLRB, a federal agency, to execute all of this stuff, right?

Labor law in this country.

The Clean Water Act, it delegates authority to the EPA, the Environmental Protection Agency, to do all of this stuff under its authority to execute the requirements of the Clean Water Act.

Like, this is how the fucking government works.

Right, right.

Congress is aware of the Biden plan.

And you would think that if Congress disagreed with the scope of authority that Biden was claiming, that perhaps it could step forward and act.

Now, clearly, they don't.

And that's because Congress is largely or was largely controlled by Democrats.

And so the law was not going to change.

Enter Amy Coney Barrett in the Supreme Court to rescue us from the legislative majority.

Yes.

I mean, that's what's happening here, right?

And that's what's happening in a lot of these cases where they're like, ooh, I don't think Congress meant that.

It's like, okay, they can literally pass a very quick law right now

saying we don't think that Biden's interpretation is correct.

Did they?

No, because they couldn't corral a majority for that.

That's legislative will.

So Amy Coney Barrett has that quite incoherent concurrence.

Oh, she also makes that crazy metaphor.

Oh, we should talk about the metaphor.

Yeah.

I forgot.

I don't, we're going to Disneyland or something.

What is it, Michael?

Yeah, so she

makes this metaphor to illustrate her point, which is that, like,

say

you are going out and your babysitter's there with your kids, and you give your babysitter your credit card.

and instruct her to make sure the kids have fun.

Okay.

Would the babysitter then be within her rights to take your kids on a two-day road trip to like Disney World?

And

is this illuminated for anybody?

Dude, Amy fucking sat around trying to come up with a metaphor

that works perfectly

for six months.

And this is what she got.

She got a metaphor where for some reason the parents are handing a babysitter a credit card.

With apparently no credit list.

Right.

Make sure the kids have fun, like wink, wink.

Like, what are you talking about?

Who does that with a babysitter?

And how is that student loan forgiveness?

Like, the parents are the Department of Education and the babysitter is, I don't know.

No, no, the parents are Congress, Reef.

The babysitter is the Department of Education.

Okay, and the kids, I'm a child as a student loan borrower.

The kids are the borrower.

Got it.

The tiny baby children.

That is a student loan borrower.

Passing the Heroes Act is giving the

credit card

to the babysitter.

Yes.

The Department of Education.

Really glad you included that, Amy.

Thanks a lot.

Yeah.

No, just a cool, flawless metaphor that does not require you to make a series of preposterous assumptions that distance it from the original context so much that it becomes useless.

And insulting.

It's fucking insulting.

Yeah.

This is what happens when you have like 25 kids.

The only metaphors you can think of are babysitter related.

And as a reminder, again, the Heroes Act is about

national emergencies.

Yeah, a better example would be like if you gave a credit card and were like, this is for emergencies.

And then they used it for.

For an emergency.

There's a metaphor, Amy.

You stupid fuck.

And the kid got injured and you took him to the hospital and you put it on the credit card.

And then a judge showed up and said that you were not allowed to do that.

Yeah, because actually, this is a major decision.

And that the kids actually had to pay for themselves.

Right.

God.

Get a job, kids.

Five seconds.

You know what?

Get a fucking job, Amy Coney Barrett.

Anyways.

All right, we got a little carried away with our critique of that, but it was still stupid.

It's just a concurrence, but it's so dumb.

It's so dumb reading this whole thing.

I think it is time for a quick break.

All right, we are back.

So, moving on to something that's actually substantively, procedurally, legally, much less stupid than the majority or the concurrence, that is Elena Kagan's dissent.

The dissent here is quite meticulous, quite good, right?

She schools the majority on their supposed textualism.

She schools the majority on the standing doctrine.

She schools the majority on the substance, on the merits of the loan forgiveness program.

Which it is sort of like Shaq dunking on a third grader, but she still whips their heads.

Right.

But I like her fucking showing up for it, right?

She's in the zone here.

And I like the tone here.

There's some sarcasm in this dissent about what it is the majority thinks they're doing or what it is that they say they're doing.

There is an explicit statement by...

Justice Kagan that what the Supreme Court majority opinion does in this case is unconstitutional, right?

That they have violated the Constitution by doing this.

She says that it is unconstitutional for the Supreme Court to act as a policy-making body, which is what they're doing here.

They are acting as if they are the legislature, rewriting the Heroes Act in the way that they want it written, right?

And going against the clear text of the statute.

That, to Kagan, I like the bold statement that is unconstitutional.

That is a violation of the separation of powers.

She starts off quite near the top of the dissent.

Kagan says, quote, 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.

That is a major problem, not just for governance, but for democracy too.

She goes on, she's saying, the court is exercising authority it does not have.

This is a violation of the Constitution.

The court cannot enact policy.

The court cannot rewrite laws, right?

Right.

Looping back to what I said about Conn Barrett's opinion, it's good to think about who Kagan is addressing here.

And I think she's talking to Democrats in Congress and the presidency.

Yeah.

I think this is as close as you will ever get to a sitting justice being like, we needed court reform.

Right.

Saying the conservatives are violating the Constitution.

Like explicitly saying that is a call to elected Democrats to do something about it.

Right.

I don't think there's an other way to read it.

Whether or not they are too fucking dull or up their own ass to catch it is a separate question.

But I took this as like very much being like, Joe Biden, wake the fuck up.

Yeah.

Yeah, I think that's right.

She goes through how the Supreme Court is overreaching in this decision.

The court's first overreach, she says, is deciding the case at all, right?

She's talking about standing here.

Article 3 of the Constitution says that the courts decide cases and controversies.

There is none here.

The state of Missouri has not suffered an injury.

There is no case.

There is no controversy, right?

She says, quote, we do not allow plaintiffs to bring suit just because they oppose a policy.

The next overreach she talks about is basically that John Roberts is rewriting the HEROES Act, right?

Kagan's like, you know, you call yourselves textualists and you say that textualism ensures that judges don't inject their policy preferences into their legal analysis.

Here, the text of the HERES Act says very clearly what the fuck it says.

It says the Secretary of Education can waive or modify any student loan plan.

It says they could do it en masse.

It says they could do it without notice and comment, right?

It says it very clearly.

You, majority, are reading things in here that are just not there.

And that makes the court into a legislative body.

You are writing laws.

You are making national policy on student loan forgiveness, right?

For everybody.

Peter, you talked about how John Roberts has this whole section of the opinion where he's focusing on the word modify and defining the word modify.

Kagan's like, this is fucking bogus, dude.

You're reading this word modify to mean like only a little bit of change.

But Kagan's like, you have to read the word in context.

You can't just say a word means something in isolation outside of the sentence, outside of the entire law that it's written, right?

The statute says that the Secretary of Education has the power to waive or modify.

Waive certainly means something pretty big, probably cancel, probably forgive, right?

So why would it be that the administration has the power to completely cancel loans on the one hand, but modifying has to only be something teeny tiny, right?

And then you can't do anything in between.

It makes no sense.

It's so idiotic, right?

God, it's so fucking stupid, man.

It really does make me want to lose my mind.

It's so stupid.

I mean, it's pretty unbelievable, the balls, to be like, look, it says waiver modify any provision, but in context,

that's actually not really that big of a grant of discretion or authority.

Right.

Right.

Like, like, who the fuck actually buys that?

Like, how fucking brain dead do you have to be to be like, oh, I wasn't sure, but I read John Roberts and now I'm convinced.

Like,

fucking pudding brain.

Absolutely.

I mean, I really do feel like someone like Clarence Thomas must just sort of like sigh in exasperation every time he's forced to sign on to one of these.

Not because he disagrees with it, but just because he's like,

fuck me.

Like, you couldn't have said it a little better than this.

Like, this is what you've got.

Yeah.

Yeah.

Going back to the standing question, Kagan has a really good section in the dissent, I think, where she is laying out specifically why the state of Missouri does not have standing here through Mohila, right?

Remember, Mohila is the separate corporation created by the state of Missouri that is a loan servicer organization.

You won't see this anywhere in the majority opinion, but she lays out very clearly, Mohila had no involvement whatsoever with this suit.

They didn't file a lawsuit themselves.

They didn't even file an amicus in this case.

They didn't even tell the court, like, we're going to be affected by this and we would like the court to rule in such and such way, right?

They weren't involved with the Missouri AG's decision to file the suit at all.

They didn't even know the lawsuit had been filed.

And it is still unclear to this day, right, what Mohila prefers out of this case, right?

They have not released any statement as to the effect that this would have on them.

Yeah.

And I believe that there was reporting that, like, internally, people didn't agree with it.

And also, it seems pretty obvious that if people within mohila really did agree with missouri that there would have been a statement saying that they did right just to like ease the pressure off the state missouri needed documents from mohila and they had to fucking subpoena them yeah use formal sunshine laws kagan says that as well right it's a public corporation so stupid anyways it's a really good dissent i think if you want to know what the fuck is going on in this opinion yet another opinion where you actually don't know what went down until you read the dissent exactly Right.

Like, remember like Kennedy v.

Bremerton last year, the football coach doing prayers?

Like, if you don't read the dissent, you genuinely don't know what happened.

Incoherent.

I do like also that Kagan, she calls the major question doctrine made up, the made up.

Yeah.

Yeah.

Yeah.

Like just straight up.

Like

someone's been listening.

Yeah.

To us, the only podcast that has ever said that.

That's right.

Now, there's another part of the Roberts decision I'd like to discuss, which is his rant at the end of the opinion directed primarily at the liberal justices.

He says, quote, 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 goes on to say that, quote, we have employed the traditional tools of judicial decision-making.

Reasonable minds may disagree with our analysis.

In fact, at least three do.

We do not mistake this plainly heartfelt disagreement for disparagement.

It is important that the public not be misled either.

Any such misperception would be harmful to this institution and our country.

God.

So he appears to be saying to the liberals, hey, don't say in your decisions that we're violating the Constitution.

Don't say that we're a bunch of lawless partisan hacks with no integrity, because if you say it, people might think it's true,

which would be bad for the court.

This is like the continuation of a trend we've seen recently, especially in Alito's public comments, where like it's not enough that they have the power and are doing whatever they want.

They also want everyone else to shut up about it and show them respect and not be mean.

Yes.

I also want to note that Robert says criticizing decisions for going beyond the proper role of the judiciary is a feature of, quote, recent opinions.

And I just wanted to harken back to a time long ago, 2015,

when the court held in support of the right to gay marriage in O'Bergefell v.

Hodges.

Scalia, in his dissent, compared the majority's reasoning to, quote, the mystical aphorisms of the fortune cookie.

Alito said that the nation should be, quote, concerned about the scope of power that today's majority claims.

And Roberts himself famously said that you could celebrate the ruling, but, quote, do not celebrate the Constitution.

It had nothing to do with it.

Yeah.

So I guess it's just weird to me that Roberts chose now, when conservatives hold a supermajority,

to get so concerned about the tone of dissent.

Right.

Right.

Very interesting.

I don't recall him loudly calling out Anson and Scalia at the time.

Right.

Maybe I missed that.

Maybe I missed that Wall Street Journal op-ed.

Yeah.

Yeah.

Yeah, but Peter, there weren't polls showing Supreme Court approval at like 28% then.

Yeah.

Is the thing.

That's right.

But I don't think it's the tone of the dissents that's drawing down their popularity personally.

No, it's something else which this case brings to mind, which I can't stop thinking about.

Something majorly contributing to the massive public disapproval of the Supreme Court right now is the blatant, egregious, obvious, and almost unbelievable in scope, corruption of the Supreme Court, right?

You have Justice Clarence Thomas being yachted, wined, and dined,

flown all over the world to the tune of half a million dollars in a luxury vacation, summer trips to a billionaire's retreat, all free, family homes being bought by a billionaire, right?

You have Sam Alito getting flown for free by a billionaire in a private jet to, again, a free vacation in Alaska.

It's

unbelievable.

It's enraging.

And then the work that they do, if you can call it work, if you can call it job, right?

The work that they do is say a $10,000 forgiveness, a $10,000 reduction in your student loans.

That's too much.

That is beyond the authority of the federal government.

Right.

Right.

It's sickening, actually.

Everything in conservatism is about hierarchy.

Right.

Right.

When the federal PPP program was spewing out.

billions of dollars of free money to like largely already wealthy business owners, did a single fucking conservative complain?

No, no.

Was it all over Fox News every fucking night?

No.

No, because in their minds, those people inherently deserve the money.

They are like preferred citizens.

They don't care about

financial responsibility or discipline or anything like that in reality in a vacuum.

They all wanted to get in on

they were all like, I got to get a PP loan.

I'm going to get it forgiven.

That's great.

Right.

And they don't like people that they deem undeserving receiving anything at all.

Right.

At oral argument, Alito and Roberts were asking about whether this program could be considered unfair to people who didn't have debt or people who chose not to enter higher education at all.

Right.

Unfair.

That's not legal analysis.

That's just policy preferences.

These are, again, justices who are gifted half million dollar vacations and flown around the country on private jets by wealthy benefactors who are actively buying influence.

They are getting invited to fucking fancy dinners and mingling with wealthy and powerful people every week.

They lie about the gifts they receive and then they get indignant and write in the fucking Wall Street Journal about how annoyed they are when people find out.

And then

when the question of $10,000 for

struggling younger people, mostly younger people, comes up to the court, they ignore every applicable legal and logical principle just to rip that 10 grand out of their fucking pockets.

Yeah, it is entirely spite-driven.

It really is.

You know, good politicians deliver wins to their base constituencies.

And it's like, who's the constituency here?

It's angry old people who watch Fox News who are like, fuck them kids.

Right.

Right.

That's it.

That's the win being delivered here by the politicians on the court.

Yeah.

It's really fucking gross.

Right.

The lack of standing here is almost symbolic.

It's not just an example of them ignoring legal principles.

It's symbolic of how little of a material complaint

anyone actually has about this program.

Right.

But they're offended anyway.

The entire conservative legal movement could not piece together one person who was actually injured

by this program.

Right.

Mohila might not even lose money because they get money when they close accounts.

So every count that the balance was less than 10K, they get a payout from the federal government for that.

So a lot of their supposed losses are going to be offset by these lump sum payouts.

Right.

It's literally a situation where they needed the court to step in and basically pretend that standing doesn't exist because spite is not enough to grant standing.

Fucking Tony Soprano's mom sitting at the TV being like, these fucking kids, it's not a basis for a lawsuit, but it is their political constituency.

And that is what drives this as a political issue.

It's what drives these justices here.

Oh, absolutely.

There is no question that when you have someone like Sam Alito talking about fairness at oral argument, that what actually is driving him is his irritation at the program in general, his belief that young people, students, just don't deserve this and fuck them i want to hurt them right that is what the purpose of this opinion is yeah

so the fight is not over the heroes act it talks about waiving and modifying provisions and stuff it's referring to another law yes the higher education act the hea

which also grants authority to the Department of Education and the Secretary to do lots of loan modification and even loan forgiveness.

Now, the thing is,

going through the HEA takes longer and it might end up being more constrained.

We'll see.

But so, the HEA requires what's called negotiated rulemaking, which means that stakeholders need to be brought in.

There needs to be a whole negotiated rulemaking process.

And once that is done, then they submit a rule to public notice and comment, which Rhiannon described briefly at the top of this episode.

This is a time-consuming process

with more players than just those under the administration's control.

There are outside groups being brought in.

So we'll see.

And then, of course, there's the question of the extent of their authority under this and whether the court will try to

limit or kneecap them.

You know, Biden is trying to use the Higher Education Act for round two of the student loan wars.

Roberts probably anticipated this, and he opens up this decision by using language that characterizes the scope of that act as fairly narrow.

He says that it authorizes the Secretary of Education to cancel or reduce loans in certain limited circumstances, like already very sort of colorful language limiting an act that he's not really supposed to be interpreting

in this instance.

Right.

Right.

He's like, don't even fucking try it, Joe.

Yeah.

And Joe's like, go fuck yourself, buddy.

I'm doing it.

Yeah.

I mean, the Biden administration was clearly ready for this because they had documents finalized the night before this opinion came down, according to their metadata, ready to go, invoking negotiated rulemaking and all that under the HEA.

So they're still going for it, I think, because they have to.

Like, you can't set down this path and not like fight every step of the way.

And I don't want to give Democrats too much credit, or at least they are coming around to the reality of the court late.

Right.

And

if you want evidence of that, John Roberts, in a little bit of like a, you know, stunting move on everyone, quotes Nancy Pelosi in his majority opinion, saying that the president doesn't have the power to cancel student loans under the HEROES Act.

You know, there were a lot of sort of internecine Democratic politics on whether to do this and if so, how to do it.

And so there's a lot of public posturing about the best ways to do it, who does and doesn't have the power to do it.

Would it have to go through the House or whatever?

But like, you know, Pelosi was in Democratic leadership when the Heroes Act passed.

So like her public statements about what it does and does not do are like powerful, right?

And coming out and saying that publicly was just such an obvious own goal at the time, and one that the Republicans are like gleefully taking advantage of here because these fucking fossils are not ready for this world.

They're not.

Right.

They're not ready for this fight.

They are saying shit publicly.

They're so disorganized politically on their own stances as a party that they're saying shit publicly that can now be cited in the Supreme Court reporter for the Republican conservative position.

That's right.

I think this sort of shows, though, that the court is feeling pretty emboldened, right?

We will talk about this in our term recap episode in a few weeks, but they're definitely testing the limits here of what they think they can get away with without a response from the Democratic Party coming for them.

And they clearly think they can get away with this.

Can't wait to see what they get away with next term.

You know, we hinted at it, but a lot of savvy people thought that this was going to be a win, that the standing case was so bad that the court had to throw it out.

I'm in that crowd.

If I had to bet before this came down, I would have said that it gets tossed on standing.

And it just goes to show where the court is and that anytime a case drops and it's a little to the left of where you thought it might be, it's very easy to get caught up in a narrative about how things are okay because that narrative feels good.

Yeah.

And mainstream media likes to reiterate that narrative because it feels counterintuitive.

And the reason it feels counterintuitive is because it's wrong.

Yeah.

Right.

It's incorrect.

This is a very far-right court.

The cases that have been wins, for the most part, have been cases that were outlandish conservative theories that would not have been even remotely entertained five years ago.

That's right.

And I think the end of this term was a good reminder that they are not pumping the brakes here, right?

That last year with Dobbs and Bruhn, you know, abortion and gun rights was just the fucking beginning.

They weren't just dipping their toes in the water.

They were jumping in.

And they're in now.

And the left, the Democratic Party

has two choices.

You either acquiesce or you aggressively confront the court with material limitations on their power.

There's no functional middle ground, and they are absolutely daring the Biden administration and Senate Democrats to do something,

probably

because they know

in their heart of hearts that moderate Democrats run the party and don't have the balls.

Next week.

Next week, Deshaney, the Winnebago County, bad one from a few decades ago about the scope of the 14th Amendment and whether the government has an obligation to help you.

Ever.

Do they have to help you?

Or do they just get to take money out of your pockets and get yachted off for the rest of the summer?

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