Comment: Court student debt ruling exposes its judicial activism

By Noah Feldman / Bloomberg Opinion ·

In a major rebuff to the Biden administration, the Supreme Court has struck down, 6-3, the $430 billion student loan forgiveness program adopted under the secretary of education’s emergency powers. The court held that the loan forgiveness went beyond the secretary’s legal authority to “waive or modify” any provision of the relevant law when deemed necessary in an emergency; in this case, the covid pandemic.

To reach that conclusion, the majority opinion, written by Chief Justice John Roberts, invoked the new legal rule known as the “major questions doctrine” that he first introduced last year in the important carbon dioxide emissions case, West Virginia v. EPA. In dissent, Justice Elena Kagan attacked the major questions doctrine as a “made up” doctrine designed to give the justices the power to overturn executive action they don’t like.

She’s right about that; but the doctrine is now here to stay. It represents a fundamental new and powerful weapon for the conservative majority to block liberal policy initiatives.

In principle, Roberts and the conservatives could have decided this case without referring to the major questions doctrine. They could have based their holding solely on the language of the statute and concluded that a massive loan forgiveness program goes beyond the ordinary meaning of the words “waive” or “modify.”

And in fact, the court did say that the emergency provision allows the secretary to waive or modify programs, “not to rewrite [the student loan] statute from the ground up.” In a separate concurrence, Justice Amy Coney Barrett emphasized that in her view, the major questions analysis was not a necessary part of the court’s opinion.

The reason Roberts went further and invoked the major questions doctrine is that, as the government argued before the court, the emergency provision is by its nature broad. It was clearly intended to allow measures deemed necessary to respond to emergencies. And as Kagan’s dissent noted, “emergencies, after all, are emergencies.” Thus, the purely text-based argument that loan forgiveness is more than a waiver or modification was notably weak. To forgive loans is, ultimately, to waive them.

The major questions doctrine, however, gave Roberts more ammunition to strike down the loan forgiveness program. Under that doctrine, the basic idea is that if the executive branch does something the court considers really big and really new, then the court will look to see if Congress really authorized it. Absent clear congressional authority, the court will strike it down.

You can see how that logic would help Roberts here. He pointed to the loan forgiveness plan’s $430 billion price tag and reasoned that “the secretary has never previously claimed powers of this magnitude” under the emergency law. Because the initiative was big and new, Roberts concluded that Congress, not the executive branch, was the appropriate part of the government to undertake such a major initiative.

Kagan’s powerful dissent, which Roberts characterized as “heartfelt,” left no doubt that the major questions doctrine is Chief Justice Roberts’s greatest bid for judicial activism and authority. It began: “In every respect, the court today exceeded its proper, limited role in our Nation’s governance.”

In the most devastating part of the dissent, Kagan delves into the details of the law to show the text itself authorizes debt forgiveness; showing the major questions doctrine to be an assault on the theory of textualism, which conservatives since Justice Antonin Scalia have been claiming is the right way to interpret statutes.

According to Scalia and his acolytes, the whole point of textualism was to take judges out of the game of judicial activism by limiting them to the words in the statute. In contrast, the major questions doctrine allows the court to ignore the words of the statute.

Yet the six conservatives who signed today’s opinion all claim to be Scalian textualists.

Barrett, who clerked for Scalia and sees herself as the true keeper of his flame, was worried enough about Kagan’s critique to devote a long concurrence to a textualist defense of the major questions doctrine. Her main thrust was to say that genuine textualism is supposed to consider context. Kagan agrees, as she said in a footnote. (A remarkably cordial one, given the sharpness of many of the court’s opinions and dissents this term.)

The trouble with the context version of textualism isn’t that it is illogical. Of course words have meaning based on their context. But once you admit this basic fact, textualism loses a lot of its steam.

The fact that six justices who claim to be textualists also embrace the major questions doctrine is all you need to know about the issue. The truth is that textualism was always an extremely weak theory of how to interpret statutes; unless it was expanded to include factors outside the text.

The bottom line here is that the conservative majority is going to keep striking down liberal executive branch initiatives it doesn’t like; text, context or no text.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”