Image by Ivy Sanders Schneider

A Collective of Freelance Lawyers

Eleni Schirmer

The Supreme Court isn’t as much a body of government as it is a collective of freelance lawyers, and Biden v. Nebraska was less a case than a grab bag of grievances dumped out by disgruntled ideologues. Six Republican-led states, in order to prove injury by the student-debt cancellation policy, claimed that local entities would lose money, which would harm the states in various ways. Missouri argued that it would be financially harmed because loan cancellation would impede the ability of MOHELA, a state-founded but independently run loan servicing company, to repay an old, nearly forgotten debt to the state. Missouri, however, has not tried to collect repayment for this debt since 2008, and MOHELA has plainly and repeatedly stated it has no plans to repay it. And in spite of the cancellation, MOHELA was set to have record revenues in 2023 thanks to new contracts and an uptick in borrowers. In short, cancellation wouldn’t have harmed MOHELA and it wouldn’t have harmed Missouri.

“Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees? I would like to meet him,” Justice Elena Kagan wrote in her brilliant dissent. The particularity of the case, indeed, didn’t matter to six of the justices. In the majority opinion, Chief Justice Roberts drew on the “major questions doctrine,” a novel theory that allows the Court to stop the executive branch from acting on issues it deems politically or economically controversial without highly explicit permission from Congress. In the doctrine’s inaugural joyride last summer, Roberts’s majority opinion drew on major questions to conclude that the Environmental Protection Agency had gone too far in attempting to regulate power plants. In her dissent, Kagan scorched the Court’s use of the doctrine; when existing statutes don’t suit the conservative majority, she writes, “special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” In effect, major questions is the Court’s means to override Congress and “prevent agencies from doing important work,” should its legislative and administrative actions cause conservative justices to raise an eyebrow.

In Biden v. Nebraska, Justice Amy Coney Barrett doubled down on this philosophy. She invoked the major questions doctrine in a concurrence to compare the Biden administration to an “ambitious babysitter” who, overzealously interpreting the parents’ instructions to make sure the kids have fun, whisks away their kids and their credit card for an overnight trip to an amusement park. (This is, apparently, how Barrett views the President’s decision to exercise his Congressionally approved authority to cancel a modest amount of student debt.) The majority’s decision to block cancellation “reflects the intuition that the parent” — the Court — “is in charge and sets the terms for the babysitter,” she writes. It’s not fun, but someone’s got to end the party.

Effectively, the major questions doctrine allows the Court to override Congressional mandates it does not agree with. The doctrine is, per Kagan’s dissent, a way “the Court puts its own heavyweight thumb on the scales.” But, in doing so, the Court trumps the legislative powers bestowed to Congress and authorized by voters. By design, the Supreme Court is to keep its nose out of politics, reserving its powers to decide genuine cases and controversies — not to interfere with the democratic process. Major questions changes this. As Kagan wrote in the same dissent, “The Court, by deciding this case, exercises authority it does not have. It violates the Constitution.” She all but wails that somebody needs to do something about this Court.

If Kagan, one of nine Americans seated on the Court, cannot do something, who can? And what exactly are three lame-duck liberals supposed to do on a conservative Court, besides outlive their colleagues? Could a Kagan resignation have a bigger impact than a decade of lame-duck dissents? A Kagan Center for Judicial Reform might turn heads. From the outside, maybe some of these freelance lawyers could finally do something about the Court.

Eleni Schirmer is a writer living in Montreal. She’s an organizer with the Debt Collective.