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Judicial roadblocks fail to slow high court’s conservative majority 

Partisan advocacy saw a potential boon as the Supreme Court ruled against a federal plan to forgive billions in student loan debt.

WASHINGTON (CN) — With a contentious ruling that took away billions in debt relief for Americans, the Supreme Court sent a bat signal to those interested in how some of the biggest political fights across the country play out.

“The court seems to be inviting politically motivated challenges in highly controversial areas,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone call.

From abortion to guns to race, the Supreme Court has long been a player in the nation’s politics. Without an actual case or controversy that gives the court jurisdiction, however, the court lacks he ability to decide such cases. 

This bedrock judicial principle known as standing prevents the court from deciding issues that are not ripe. But one week out from the decision that blocked President Joe Biden’s student loan forgiveness plan, some legal experts are questioning if the court has bucked this fundamental principle. 

“From the outside looking in, it looks like the court seems determined to follow an agenda, and traditional avenues of judicial restraint that have been a guiding principle for the Supreme Court for such a long time, seem to be abandoned, particularly the student loan case,” Gostin said. 

The case against the debt forgiveness plan was brought by Republican-led states. As they made their way to the Supreme Court, it was clear the conservative majority might use the newly minted major questions doctrine to strike down Biden’s authority to some student loans. What was not clear, however, was whether the program actually wounded the states. 

Six justices on the high court ultimately decided that the states did have standing to challenge Biden’s program. Led by Chief Justice John Roberts, the majority adopted an arguments that Missouri would be injured because of its relation to loan servicer the Missouri Higher Education Loan Authority (MOHELA).  Roberts said the plan would harm MOHELA and therefore harm Missouri. 

“Because we conclude that the Secretary’s plan harms MOHELA and thereby directly injures Missouri — conferring standing on that State — we need not consider the other theories of standing raised by the States,” the Bush appointee wrote. 

While created by the state, MOHELA is a legally and financially independent public corporation. Internal documents obtained in a public records request by the Student Borrower Protection Center showed the company had no idea prior to the case being filed that the state was going to claim MOHELA’s supposed injury. Some employees even said MOHELA was opposed to the move but was hamstrung by the state attorney general. 

But for requests under the state's sunshine law, MOHELA's involvement in the case would be nonexistent. 

“It seems to me that this is the kind of court that would typically say, if they're not a party to the case, we should infer there was a reason they're not a party, and, therefore, you can't use them to shoehorn in standing based on them because they're not a party,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview.

This fact was brought to the justices' attention during oral arguments by U.S. Solicitor General Elizabeth Prelogar. In an exchange with Justice Elena Kagan, Prelogar said the state served these requests to MOHELA because the loan servicer was refusing to give over information voluntarily. 

Despite MOHELA’s reluctance to join the state’s effort, the high court majority concluded that harm to the loan servicer would harm the state. Roberts cites MOHELA’s governing structure, which includes state officials and state appointees. He also notes that the loan servicer reports to the state. 


“The Secretary’s plan will cut MOHELA’s revenues, impairing its efforts to aid Missouri college students,” Roberts wrote. “This acknowledged harm to MOHELA in the performance of its public function is necessarily a direct injury to Missouri itself.” 

Roberts specifically cited a Missouri education fund into which MOHELA has paid. But MOHELA’s own financial statements note it has not paid money into the state fund for over a decade. In the same disclosure, MOHELA also suggested it was not sure it would be contributing any additional money to the fund. 

Even if Biden’s loan forgiveness program were to impact MOHELA’s ability to pay into the fund, it's not clear it would be negative. An analysis from the Roosevelt Institute found MOHELA’s year-over-year revenue would actually increase with the additional servicing rights. According to the think tank, MOHELA would actually make more revenue the first year after cancellation than it did in any year prior. 

MOHELA has not said if the program would harmed it — a factor experts point to as the problem. 

“This is the exact reason for the standing doctrine,” Lawrence said. “Maybe it would be to their advantage, maybe it would be to their disadvantage. This is why you want the parties with something at stake, precisely so that the court below can ask those questions so that you've got a record of those questions that the appellate court can review.” 

To court watchers, MOHELA's indirect involvement runs counter to the court’s standing doctrine, as they know it.  

“Under any traditional understanding of the standing doctrine, the court should have thrown this out and particularly because it had such enormous political implications,” Gostin said. “A cautious and deliberative court would have made very sure that it had the proper case before it.”  

The three dissenting justices accused the majority of upending the court’s role in the democratic system by acceptingwhat they saw as third-party standing. Kagan went so far as to say that the majority had violated the Constitution. 

“Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation,” the Obama appointee wrote. “And that means the Court, by deciding this case, exercises authority it does not have. It violates the Constitution.” 

Compounding the disagreement on standing in the student loan case was a ruling the court handed down the same day on LGBTQ rights. In a case out of Colorado, the court said website designer Lorie Smith should not have to fear running afoul of the state’s anti-discrimination laws if she were to turn down any request to build a wedding website for a same-sex couple. 

The case was brought as a pre-enforcement challenge, but the New Republic would later uncover court filings that cited a website request from a gay couple. Not only did that person disavow having made such a request, however, he was also already married to a woman. 

Taken together, the case have given legal experts the sense that the court may be willing to loosen the strict understanding of the standing doctrine that has traditionally governed the court’s docket. 

“There is a sense that the court is aggressively pursuing its own docket, as opposed to what the court is supposed to do, which is wait for cases to come to them and decide actual cases that are ripe for decision that raise issues that require the intervention of the Supreme Court,” Lawrence said. 

Standing is a limit on judicial authority just as the court is a limit on executive authority. Without that requirement, the ruling becomes an advisory opinion. 

“The court is not in the business of giving advisory opinions,” Lawrence said. “The court is in the business of deciding actual cases and controversies. And that is a serious question if the court begins to expand on that.” 

Court watchers say signals of a weakening standing hurdle could encourage advocates to bring more controversial cases to the court’s steps. 

“You're going to have zealous advocates on both sides ... who are going to try to manufacture the best possible cases to get to the court,” Gostin said. “If they don't have to worry about genuine standing issues as much as they did before, it just means that it's easier to have politically motivated challenges to socially consequential questions. I think it's an open invitation for partisan advocacy.” 

The court’s tolerance for these kinds of cases could be tested sooner rather than later. A challenge to the Food and Drug Administration’s approval of the abortion drug mifepristone has been critiqued for its shaky standing ground. The case is expected to be appealed to the high court after the Fifth Circuit rules on it. 

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Categories / Education, Financial, Government, Law, National, Politics

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