The right wing of the Supreme Court shows its hand in student loan forgiveness case

April 27, 2023 6:00 am

Sorry, debtors, Justice Samuel Alito says debt cancellation is not a "very sensible" policy. Photo by Paul Morigi/Getty Images.

The recent Supreme Court hearing on the challenge to the Biden administration’s $300 billion student loan forgiveness program was unusually revelatory in several ways.

The initiative is available to up to 40 million eligible Americans and covers some 730,000 former and current college and university students here in Minnesota, about 12% of the state’s population. 

But it seems on life support after the conservatives on the U.S. Supreme Court skewered it during a hearing on consolidated lawsuits brought by objecting Republican-controlled states.

The remarks from the bench during the lengthy oral arguments advanced in support and against the measure raised several interesting points that unmask some of the hypocrisy of the jurists.

First, it continued a pattern of the justices openly espousing their views from the bench. Rather than posing questions to the attorneys for each side to address uncertainties or flesh out positions — which is the supposed purpose of oral arguments — the justices used the occasion primarily as an exercise in articulating their stances, which almost invariably these days accurately foretells not only how they will rule but what they will say, sometimes verbatim, in their written decisions.

Second, the views of two of the conservative jurists — Justices Neil Gorsuch and Samuel Alito — departed markedly from their supposed ideologies of judicial restraint and deference to administrative decision-making. Gorsuch is said to be a champion of “textualism,” which is construing laws strictly on the basis of their wording, not their impact or consequences. He questioned the “fairness” of the debt relief initiative because it only affects current debtors, not past ones, and doesn’t extend to other types of loans and debts.

Yet, the issue of “fairness” is not supposed to be in the toolkit of “textualists” like Gorsuch. The conservative jurist has written a book, “A Republic If You Can Keep It,” eschewing consideration of equities in construing laws like the 2003 measure — the Higher Education Relief Opportunities for Students Act — used by the administration to construct the debt relief program. Incidentally, the 2003 law contains broad language authorizing the action taken by the Secretary of Education in “emergency” situations — like, say, the COVID-19 pandemic — to relieve those debts.

Alito came up with the same approach, opining that debt relief program is not “very sensible,” even though he and others of his ideological ilk repeatedly caution against judges assessing the wisdom of laws or administrative actions. That he does not think student debt reduction is a prudent idea ought not matter to him and others practicing judicial restraint; yet, it does when he doesn’t like the law in question. 

The Biden forgiveness program, to be sure, has its imperfections, and more than just its sizeable price tag. But that’s true of many laws and administrative edicts that come out of the nation’s Capitol or the ones in St. Paul and the 49 other states in the country. Yet, the conservatives on the court have repeatedly admonished against assessing those measures on the basis of their wisdom or propriety, a task that they frequently remind should be reserved to the democratically elected legislative and administrative decisions-makers.

The only seeming salvation for the Biden initiative might be a procedural technicality: The lack of standing of the contesting states to challenge the program. That issue, raised by a couple of the judges including Justice Amy Coney Barrett, also is a hallmark of some conservative jurisprudence. But that life-saver probably will be disregarded by the right-wing majority steamroller in its rush to judgment.

It’s admirable that — due to measures put in place during COVID-19 — the public has an opportunity to hear the voices of the justices contemporaneous with the hearings. 

Now, the court should enter the 21st Century and allow its proceedings to be televised, a proposition that will contribute to “fairness” of the judicial process while also being “very sensible,” features that ought to appeal to those two appellate jurists and others as well.   

But that’s an issue for another time.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.