Will Conservative Justices Ignore Their Own Limit on the Supreme Court’s Power?

Much of the public debate following the recent oral arguments before the Supreme Court in a pair of challenges to President Biden’s student loan debt forgiveness program has focused on the legal merits of the policy. In particular, many critics of the court flagged how some of the Republican-appointed justices couched their hostility to the program in terms of “unfairness,” a policy concern far more than a legal one.

In questioning Chief Justice John Roberts’s focus on fairness, for example, Senator Elizabeth Warren of Massachusetts said he is “becoming a super-legislator.”

But the conservative policy critiques of the program weren’t the only — or even the most — disturbing hypocrisy. The oral arguments revealed the specter of another, even worse, one — that a majority of the justices may agree to decide the lawfulness of the program in the first place.

To do so, they would have to abandon long-settled principles concerning the doctrine of “standing,” or who gets to have their cases heard in federal courts. Conservative justices have for decades justified tightening the rules on who can sue to challenge government policies that allegedly injure them and have justified such rulings as necessary in order to limit the powers of unelected, unrepresentative judges in our constitutional system.

The debt-relief oral arguments suggest that those principles may be discarded — solely, it would seem, to strike down a program to which these same justices object. The court has certainly misinterpreted statutes before, as it would have to do to hold that the 2003 HEROES Act doesn’t authorize the Biden administration program.

But abandoning conservative constitutional principles concerning the proper role of the courts in our constitutional system in the process would provide even more powerful ammunition for those who charge that the justices are exercising political, not judicial, power.

“Standing” doctrine is the idea that the Constitution itself limits the federal courts to resolving only certain kinds of legal disputes — those in which the plaintiff can show a concrete (as opposed to abstract) and particularized (as opposed to generalized) injury that was caused by the defendant and that can be redressed, at least in part, by the courts. Otherwise, the argument goes, unelected and unaccountable federal judges would have far too much power over the democratically elected political branches — who are given the discretion, as Justice Ketanji Brown Jackson noted during oral arguments, “to hash this out without interference” from a “torrent of lawsuits brought by states and entities and individuals who don’t have a real personal stake in the outcome.”

This principle goes back to the early 1790s, when the justices refused President George Washington’s request to answer hypothetical legal questions about the United States’ efforts to remain neutral in a conflict between England and France. And since at least the early 1970s, it has been conservative judges and justices who have led the charge to put teeth into standing doctrine, repeatedly defending it as an essential separation-of-powers check on the judiciary. As Justice Samuel Alito quoted an earlier ruling in 2007, “no principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

That 2007 ruling, which rejected the ability of taxpayers to challenge a George W. Bush-era program as violating the Establishment Clause, is no outlier. Justice Alito wrote the majority opinion for a 5-4 conservative majority in 2013 that rejected the ability of a wide array of plaintiffs to challenge allegedly unlawful secret governmental surveillance programs under 2008 amendments to the Foreign Intelligence Surveillance Act (just months before Edward Snowden’s disclosures helped to drive home some of the plaintiffs’ legal objections).

And a 5-4 conservative majority relied on similar standing concerns in June 2021 to hold that the Constitution foreclosed suits by some consumers who sought to challenge credit reporting companies who kept inaccurate records of their credit information — holding that it wasn’t enough that Congress believed such conduct should be legally actionable. In each of these cases, a central argument was that courts would have too much power if they had the right to defy the jurisdictional limits that they themselves have read into the Constitution, no matter how compelling the substantive arguments of those challenging the policy at issue might have been.

Under these rulings and the long-settled standing principles they reflect, neither set of plaintiffs in the student loan cases has even a strong claim to standing. In the case brought by two private plaintiffs (Department of Education v. Brown), their claimed injury is that they were denied a procedural chance to persuade the Education Department to adopt more expansive eligibility criteria. As implausible an argument as that is in the abstract, the larger problem is that the relief they are seeking, as Justice Sonia Sotomayor made clear, would not exactly “redress” their injury, since they’re seeking to have the entire program thrown out.

The standing arguments in the challenge brought by six red states (Biden v. Nebraska) are no closer to the mark. Five of the states have based their standing solely on the indirect economic effects of the program — effects that, even if they were more than just speculative (a 2013 Alito opinion requires them to be “certainly impending”), are hardly “particularized.” Only Missouri claims a direct injury: Its basic claim is that it can sue on behalf of the Missouri Higher Education Loan Authority, or MOHELA, which will be directly affected by the program. The problem for Missouri is that MOHELA is a quasi-independent entity — with its own ability to sue and be sued under Missouri law. And it has chosen not to sue here. Under the court’s limits on when a third party can sue to enforce the rights of others, that ought to be the end of the matter.

And yet, during the oral argument, Justice Alito tried to stake out what even he suggested was a new possible standing argument — that Missouri should be allowed to sue on MOHELA’s behalf entirely because MOHELA is a state actor for at least some constitutional purposes. By that logic, any time that I, as a public university professor in Texas, am injured by a federal policy, the State of Texas could sue on my behalf.

Reasonable minds can differ as to the wisdom and even the legality of President Biden’s student loan debt forgiveness program. They can also differ over whether federal courthouse doors ought to be opened more broadly to encompass more challenges to government action.

But what should not be subject to dispute is the hubris of the same justices turning their backs on a half-century’s worth of limitations on the court’s power that they articulated, and all for the purpose of striking down a social policy they don’t seem to like adopted by a Democratic president. Such a move would provide yet another example of a supposedly bedrock principle of conservative jurisprudence being tossed aside now that the conservative majority is ascendant. And it would do nothing to rebut growing charges that the justices are partisan political actors as much as they are neutral, independent jurists — further eroding public confidence in the Supreme Court and in the judicial system more broadly

Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the “One First” weekly Supreme Court newsletter and is the author of the forthcoming book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”

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