by Michael Liss
It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. …[W]e do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country. —Chief Justice John Roberts, Opinion of the Court, Biden v. Nebraska
Let us not be misled.
Here we go again. Another year, another round of controversial Supreme Court rulings, another set of difficult questions about the behavior of Supreme Court Justices.
This is not a happy group, and the unhappiness is not merely ideological. The personalities are different. In each of the four instances of changing seats since 2016, the Court lost a bit of its temperamental cohesiveness. Beyond the famous friendship between Justices Scalia and Ginsburg, Justice Kennedy was conciliatory and mindful of the Court’s traditions; Justice Breyer was courtly and insisted he was among friends. Now we have Justice Kagan squaring off against the Chief; Justices Thomas and Jackson engaging in what looks to be a very personal argument; and Justice Alito veering from searching for the Dobbs leaker, to accusing his critics of endangering his life, to airing his grievances from the safe space of the WSJ Opinion pages. Let me admit to being surprised that Justice Kavanaugh not only vouches for collegiality, but is also the Justice most in the majority.
That the liberal wing of the Court is discontented is understandable—with a couple of exceptions, it’s getting crushed on the field. Linda Greenhouse, in an article for The New York Times, points out that long-held conservative wishes that had been dammed up behind the pre-Trump-largely-centrist Court have been realized. Abortion, guns, affirmative action, the open embrace of religion, and a heavy SCOTUS hand on those regulatory actions of which conservatives don’t approve—all these trophy wins have been banked, with more to come. Greenhouse ends on what anyone who believes in checks and balances should find chilling: “The Supreme Court now is this country’s ultimate political prize.”
I suppose if you’ve won that prize, as Republicans have unquestionably done, you should be thrilled, but for the country to see SCOTUS as simply either a battering ram or a backstop for one side or the other is unhealthy. We have had several similar instances over our more-than-two-century experiment with this form of government, and the times in which the Supreme Court has taken on a role adverse to the general sentiments of the country have not ended well. Lord Acton’s axiom about power holds true here, and perhaps even more so when potentially life-altering decisions come from unelected, lifetime-appointed solons in a country that ostensibly venerates liberty, as well as accountability to the electorate.
Yet most of us like the idea of having a Supreme Court, at least in theory. We appreciate being a country of laws and liberty, of having an insulated body act as a guard-rail when our elected government becomes too intrusive. We know that they are human as well, but we expect justice from the Justices. One of the things that is so apparent in Roberts’ anguish and anger over public questions about the legitimacy of the Court is that he knows he’s lost the narrative. Both liberals and conservatives, even those who couch their comments in more cerebral, loftier language, see this Court as a mostly political animal there to dole out wins and losses. If you are a conservative, you rejoice in every victory, no matter how achieved, and, if you are a liberal, you fume, even if, intellectually, you can see the reasoning of the Right in a particular case. But in either event, you don’t really see impartiality.
At the end of the day, appearance of impartiality or not, SCOTUS rules, and there’s no credible threat to the Courts’ autonomy. Democrats have grumbled and talked about court-packing (not going to happen and essentially self-defeating). There’s every reason to believe the march to the Right will continue, and there are several controversial cases already teed up for the next term.
That Roberts can feel safe is not the same as a cure for the erosion of the Roberts Court’s status. The problem doesn’t begin with the individual acts of any of the Justices. Unfortunately, it starts with the Chief, who, at least in public, is demonstrating a certain nose-blindness when it comes to ethical inconsistencies, both intellectual and financial.
“Ethical inconsistencies” may seem somewhat harsh to characterize “legal” differences among the Justices, but the public can see that there are special rules for special litigants and issues, and is perceptive enough to recognize that consistency matters. You don’t maintain the stature of the Court by parsing small differences and otherwise getting cute to induce big, even life-altering changes. Justice Scalia, who was not always the most respectful of existing precedent, made an interesting observation in an 1989 interview:
When one is dealing, as my Court often is, with issues so heartfelt that they are believed by one side or the other to be resolved by the Constitution itself, it does not greatly appeal to one’s sense of justice to say: ‘Well, that earlier case had nine factors, this one has nine plus one.’
Let’s look at one matter decided this last term that demonstrates some of the problems with outcome-driven jurisprudence, Biden v. Nebraska, the student loan case—a case that is entirely about process and outcomes. There are no “liberties” (gays, guns, religion, embryos) to end or expand.
Biden v. Nebraska appears to have been driven by the power to decide, and very little else. The Supreme Court, in the person of the Chief Justice, emphatically declares that supremacy lies with the Supremes. Roberts the gradualist, Roberts the respecter of precedent, is nowhere on display here. The opinion is all about parsing, strained definitions of words, selective reading, and convenient applications of “Doctrines” that, to be kind, are not exactly rooted in history.
Just to be absolutely clear, I share the doubts of many that a $430 billion loan forgiveness plan is good policy. Be that as it may, it’s a policy choice, just as deciding to send federal funds to a state ravaged by floods or handing out extraordinary amounts in Payroll Protection payments are policy choices. We elect people to make and carry out policy. Joe Biden was elected; Joe Biden is accountable to the voters; and, if enough of us don’t like this policy enough to reject him as a candidate, then he can be voted out of office. The wisdom of the Administration’s policies should be no more the purview of the federal courts as would be Biden’s choice for an Ambassador to Micronesia. Once you go outside the boundaries of the traditional role of the Court—to judge constitutionality, to review compliance with applicable statutory authority—oversight should end. You cannot have a Supreme Court Justice say, in effect, “I wouldn’t have done that if I were President” or “I wouldn’t have voted for that if I were Senator.” That is not an appropriate role. The Supreme Court was involved because six Republican state Attorneys General decided that they wouldn’t have done loan forgiveness as President, and so ran to federal court to block it.
We should add a little background here. The original freeze on both interest and payments was instituted by Betsy DeVos on March 13, 2020, under the authority granted by what is called the “Heroes Act.” None of the six GOP AGs (or their predecessors) had objections, nor was there any organized resistance to it from the GOP in Congress. Biden continued the freeze with his Education Secretary, Miguel Cardona, without raising either Red or Blue hackles. It was only when he announced the forgiveness program, in August 2022, that conservative opposition emerged. Moreover, until the debt-ceiling showdown, no organized effort was made to oppose the freeze on loan payments or waiver of interest on them.
That’s right, for more than three years, barely a whisper about payment deferrals and interest waivers (I’ll come back to that last word, “waivers,” in a moment). One could draw the conclusion that Republicans, realizing that their constituents also had student loans and also benefited from the freezes, thought it unwise to insist they begin paying. But freezes also come at a cost, and if you do some down-and-dirty math on average balances of about $37,300 and an average interest rate of 5%, over three years that comes out to about $5,000. Apparently, $5,000 is below the detectable level of outrage, but $10,000 is socialism.
Hence, Biden v. Nebraska, with SCOTUS ready to save those borrowers from the moral turpitude of having some debt forgiven. Of course, I’ve argued the political aspects of this. What about the legal ones? Let’s put aside the Court’s ideological tilt and look at its logic. What is wrong with the Court’s decision in Biden v. Nebraska? It’s the method in the madness.
Let’s start with standing. Standing is much more than what a Justice is interested in. It is a requirement that the plaintiff be injured by a governmental policy, and simple disagreement is not an injury. There were two cases brought against Biden’s policy—the one by the six AGs and a second by two individual plaintiffs/borrowers. SCOTUS quickly dispensed with the two borrowers’ claims of standing, but decided that, through one quasi-public entity, created by Missouri and called MOHELA, the six AGs did have standing. Roberts, in a fit of creativity, said the purpose of MOHELA was to aid Missouri students in supporting higher education and obtaining student loans, and the loss of revenues from loan forgiveness would impair that ability. Again, not to beat a dead horse here, but MOHELA apparently did not feel this pain as acutely when payments were not being made and interest was being waived.
This is point one of Justice Kagan’s bluntly worded disagreement with Justice Roberts. Search through the pleadings, and you will find that MOHELA was not a Plaintiff. So, how does a non-plaintiff become the basis of standing for six AGs who do not, on their own, have standing? Because Justice Roberts said so.
Moving on to the merits of the case, Justice Roberts did two other things. The first was that he decided that the phrase in the Heroes Act that gives the “Secretary of Education the power to respond to a national emergency by “waiv[ing] or modify[ing] any statutory or regulatory provision” didn’t really mean that the Secretary of Education could reduce loan balances. Roberts waved goodbye to “waiving” and defined “modifying” to mean ““modest adjustments and additions to existing provisions.”
With all due respect to the Chief Justice, while I still have doubts about Biden’s policy, the words “waiving” and “modifying” when coupled with “any statutory or regulatory provision” look a lot like broad actual authority. I would add one more aspect: Congress actually enhanced the power of the Secretary of Education by adding some technical things—it allowed the Secretary to bypass what’s called the “Notice and Comment” process when a new policy is promulgated, and it permitted the Secretary to exercise authority “notwithstanding any other provision of law, unless enacted with specific reference to” the Heroes Act. Roberts was unmoved.
Having used his very best textualist sensibilities and basically rewritten an Act passed by Congress and signed by the President to suit his needs, Roberts decided he needed a belt to go with his suspenders. This he found in the “Major Questions Doctrine,” which, as good textualists all agree, had been written down in lemon juice by the Founders, had hidden itself for two centuries, and now magically becomes visible every time conservative judges or Justices decide they don’t like an administrative policy authorized by Congress. In any such case, where there is vast “economic and political significance” to the policy, Congress must speak clearly enough so a Court with situational deafness can find no ambiguity. Needless to say, Justice Roberts did not find “waiving and modifying” to be nearly as unambiguous as was necessary to rebut the presumption that Biden’s program was disagreeable to him, so it had to go.
Again, if you read Justice Kagan’s dissent, you can see she’s lost her patience and some of her tact. It’s her words that induced the Roberts quote I put at the top of this essay. Expect more of this, because the liberal Justices are going to continue to lose, and it’s only a question of whether it will be on legitimate grounds or by the conservatives torturing text.
Roberts calling out Kagan tells us something else—he’d like to pretend that the Court’s PR problems are a product of unjust criticism, rather than anything systemic. But he’s wrong. The majority of the public may resent the conservative Justices’ eagerness to tell them how to live, but those expressions of superior morality and often overt partisanship are harder to swallow when coupled with a whiff of…personal ethical decay.
Let’s skip over rehashing Justice Thomas’s journey. While we are at it, let’s clear the deck of any smokescreen references to Justice Sotomayor’s books, Justice Kagan’s (refused) bagels and lox, Justice Alito’s private jets and photographic fish, Justice Scalia’s hunting trips, Justice Ginsberg’s overseas visits, Justice Kavanaugh’s pre-existing debts, etc. etc. It just leads us to a game of one-upmanship and promotes stasis on an issue that needs movement. SCOTUS needs a code of ethics, a real one, something that reflects the Justices’ unique status in American life.
The simplest way to do this is to ask them to live under the same rules that other federal judges do—to abide by the voluntary, aspirational aspects of the Code of Conduct For United States Judges and the mandatory ones in 28 U.S.C. § 455. Finally, a firm compliance withs 5 USC § 131, which includes Financial Disclosure Requirements Of Federal Personnel (“FD”). Simple, but I just don’t see this happening, precisely because, in the real world, Supreme Court Justices are not like anyone else in our system, including other federal judges.
In our culture, Justices occupy a role somewhere between high priests and rock stars. People want to get close to them, want to treat them as special. Not everyone who offers an invitation or a gift wants anything out of it, but it is one of the smallest clubs in the world, made up of people who, when in the majority on the Court, wield immense power over our economy and our individual liberties. The power that comes with the position bestows charisma on even the most placid of temperaments. Some are great performers—Justice Alito has become a favorite for the pugnacious Right, and certainly Justices Scalia and Ginsberg, in addition to their intellectual gifts, knew how to play a crowd.
I was witness to this magic about 20 years ago, when I found myself in the Metropolitan Museum of Art’s gift shop, jammed during the holiday season, as Justice Ginsberg herself showed up. There she was in all her splendor, trailed by her husband Martin (who was about two feet taller, but thoroughly accepting of the necessity of following her three steps back). The jaded New Yorker crowd reaction was something to see. Heads popped up and swiveled, followed by whispers of “RBG, RBG, RBG.” I, of course, was completely blasé about it. I’m too cool for those things.
Can we really ask Supreme Court Justices to be monks and renounce all “pleasures of the flesh”? Realistically, I don’t think so. But we do need to know what could be influencing them, and they need to recuse voluntarily when those influences are too great. That’s why a comprehensive and materially accurate FD is important. Disclosure is the sunlight that serves as the disinfectant, and a properly filled out FD is that disclosure. In a government founded on consent of the governed, we need to have confidence that those governing us are doing it impartially, fairly, without looking to their own purses or that of their friends.
As James Madison said:
No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.
Justice Roberts, it’s time to stick to that text.