SCOTUS humors weak arguments against student debt relief
Also: Ian Millhiser on the broader state of the federal courts.
By Lisa Needham
On Tuesday, the Supreme Court heard back-to-back oral arguments on two challenges to President Biden’s cancellation of student debt. Unfortunately, the conservatives on the Court are signaling they’ll cancel the cancellation, leaving 26 million people who have already applied for relief in the lurch.
It’s a depressing but unsurprising turn of events given the Court's current composition.
A brief recap: Biden announced student loan debt relief via executive action in August 2022. Eligible borrowers could get $10,000 of their loans forgiven, and those who had received Pell Grants as an undergrad could get $20,000. For many, it’s a drop in the bucket, but it could make a real difference for lower-income folks saddled with loans. It would also have the net effect of pumping money into the economy.
Naturally, Republicans hated it and started filing lawsuits immediately, arguing that the government exceeded its authority. Some got dismissed, but the Supreme Court agreed to hear two of the cases, and after oral arguments, it is fair to say things do not look great.
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Opponents of debt relief are advancing remarkably weak arguments
One of the lawsuits, Department of Education v. Brown, was filed by borrowers who hold student loans. Myra Brown sued because her student loans are through private entities rather than the government, and she would get no relief under the current plan. Alexander Taylor, the other plaintiff, is mad because he would only get $10,000 forgiven rather than $20,000, as he didn’t have a Pell Grant.
These are not random scrappy ex-students. Instead, they’re carefully-curated conservative plaintiffs represented by a famous high-profile conservative law firm, Consovoy McCarthy, that has worked with students suing to overturn affirmative action and also with Trump in some election law cases. They made sure to initially sue in the Northern District of Texas, where Trump appointed six of the 12 judges and George W. Bush appointed four. They were pretty much guaranteed to draw a conservative judge and get a win.
There’s a technical reason that neither of these people should be able to pursue this lawsuit. Plaintiffs need to have standing to bring a case. They must show that they were personally injured, that the defendant caused the injury, and that the defendant is the entity that can fix the injury. But here, the plaintiffs’ proposed fix is that Brown continues to receive no relief, that Taylor gets the $10,000 in relief he is currently eligible for taken away from him, and that 26 million other people get no relief at all.
The solicitor general for the United States, Elizabeth Prelogar, arguing on behalf of the government, pointed out that the injuries Brown and Taylor complain of are “a complete mismatch” for the relief they seek. That’s because Brown and Taylor are pretending to say they want more student loan forgiveness than the program provides, but what they’re actually asking the Supreme Court to do is to throw out the plan altogether. As Prelogar put it in oral arguments on Tuesday, “Parties cannot go to Court to make themselves and everyone else worse off.”
To get around this, Brown and Taylor argued that if the Supreme Court tosses out Biden’s debt relief plan, a better debt relief plan could magically take its place, and under that new plan, Brown and Taylor would get more relief. Legal commentators have explained that this version of standing is a joke. As Prelogar put it during oral argument, to rule in favor of Brown and Taylor would “blow open the doors” for anyone to sue the government even when they aren’t directly affected by agency action.
This should be slam dunk stuff, but not in front of this Supreme Court. Instead, Prelogar had to put up with a lengthy musing from Chief Justice John Roberts about how the person who starts a lawn care business rather than going to college doesn’t get his bank loans forgiven. Sure, maybe, except that during Covid, Mr. Lawn Care could have gotten PPP loans and had those forgiven, just as plaintiff Myra Brown did for her sign-making business for nearly $48,000.
Things are equally weird, standing-wise, with the other case, Biden v. Nebraska, in which six conservative states — Nebraska, Missouri, Arkansas, Iowa, Kansas, and South Carolina — sued to block the debt forgiveness program. Their argument? That a giant student loan servicing company, the Missouri Higher Education Loan Authority (MOHELA), is located in Missouri, and if Biden’s loan forgiveness plan sticks, MOHELA’s revenue will go down.
If this will harm MOHELA so much, why didn’t MOHELA sue? Along with the idea that standing requires an injury that can be fixed by the defendant being sued, standing rules also generally prohibit a third party from suing on behalf of another, so the states shouldn’t be here. Further, MOHELA doesn’t appear to have asked the states to pursue this action on its behalf.
The attorney arguing on behalf of the conservative states said MOHELA’s continued ability to rake in student loan servicing money is vital to Missouri because excess operating revenue is supposed to go toward student aid. Prelogar noted during oral argument, however, that MOHELA hasn’t paid into one fund for 15 years and said future payments weren’t probable even before the loan forgiveness plan was announced. (That’s despite the fact MOHELA’s revenues were $141.7 million in fiscal year 2019 and $129.3 million in fiscal year 2020.)
This might seem arcane or boring, but, as Joe Biden would say, it’s a BFD. The states themselves can’t claim any injury here. Indeed, if the plan were upheld, literally millions of dollars would flow back into state tax coffers as borrowers could spend that $10,000 or $20,000 rather than making student loan payments — the opposite of an injury. Allowing the states to have standing to sue in this instance would enable conservative states to get in the courthouse door anytime, even if they can’t prove they’re being harmed.
SCOTUS is moved by something other than the merits
Everyone who watched the arguments seems to agree that things don’t look good for the debt relief plan. Over at NBC, Lawrence Hurley said the conservative justices appeared “skeptical” about the program. SCOTUSblog said the conservative justices gave it a “cold reception.” NPR noted the split between the Court’s liberal and conservative justices over the case and said the program would likely be struck down.
It doesn’t take great insight or legal training to see the most likely result here. The conservative majority on this court has been an absolute brick wall when stopping key Biden initiatives designed to help the country successfully navigate Covid. In August 2021, the Court threw out the eviction moratorium the administration had imposed to ensure people stayed housed during the Covid crisis. In January 2022, the conservative majority tossed an OSHA rule that required large companies to have a vaccine-or-test rule. It’s depressingly likely they’ll throw this out too.
Without student debt relief, the end of the Covid forbearance period will be catastrophic for millions. Justice Sonia Sotomayor, who reliably fights for the underdog, explained it best during yesterday’s arguments:
“There's [50 million students who] will benefit from this who today will struggle,” Sotomayor said, noting that many of those affected don’t have wealthy benefactors and will have to default, which will hurt their future prospects. “They are going to continue to suffer from this pandemic in a way that the general population doesn't. And what you're saying is now we're going to give judges the right to decide how much aid to give them.”
Ian Millhiser on the limits of Biden’s power to reshape the courts
By Aaron Rupar and Thor Benson
From the lower courts to the Supreme Court, there are a lot of very consequential legal battles happening right now in America.
Conservative anti-abortion groups filed a lawsuit to curtail medication abortions, and a ruling is expected any day now. Republican lawmakers are trying to get the Supreme Court to rule against President Biden’s student debt cancelation plan. Trump seems to constantly be in the crosshairs of one court case or another these days, from the Stormy Daniels case in New York to the election interference one in Georgia. Considering Congress probably won’t be getting a whole lot done over the next two years while Republicans control the House, the courts are going to be the center of many of the most important political stories.
Meanwhile, President Biden is doing his part to reshape the courts and just confirmed his 100th judge, which means he’s outpacing Trump in that regard.
Enter Ian Millhiser. Ian and I worked together both at ThinkProgress (rip) and Vox. He’s one of the best in the business at explaining complicated judicial happenings with wit, humor, and context, in a way that makes sense for people who, unlike him, haven’t written two acclaimed books on SCOTUS. So I was pumped when Thor proposed talking to Ian for the newsletter to get his insight about the current lay of the land in the courts.
Millhiser recently wrote a fascinating piece about how Republicans have increasingly been filing their lawsuits with specific conservative judges in hopes of getting their preferred outcome. He talked to Thor about that story and much more. A transcript of their conversation, lightly edited for length and clarity, follows.
I think a lot of people don’t understand that most cases don’t go to the Supreme Court and that other federal judges do matter. What do you think is the effect of Biden appointing so many of them?
Biden has been more aggressive in appointing judges and has paid more attention to the need to appoint more diverse judges than any Democratic president in my lifetime. He gets the issue. There are two problems: It’s still the case that the Supreme Court is dominated by six Republicans, and every court in the country has to obey the Supreme Court. Until the Supreme Court is changed, there’s a problem.
The other problem is the fact that Biden can appoint the most wonderful judges in the world in every place other than in the Fifth Circuit, and none of that matters if litigants who want to sabotage federal policies can get any ruling they want there.
On that note, you recently wrote about the DOJ finally making moves to prevent Republicans from picking right-wing judges to hear their lawsuits. How harmful has this practice this?