Last year, President Joe Biden announced a plan to forgive up to $20,000 in student debt for some 43 million borrowers whose lives and livelihoods were upended by the COVID-19 pandemic. On Tuesday, the Supreme Court heard oral argument in two cases that will together determine whether he is allowed to go through with it. Nothing encapsulates this country’s fundamental brokenness quite like the obligation to beg nine life-tenured justices who earn quarter-million-plus dollars a year for permission to make the debt burdens of working people marginally less crushing.
For longer than I’ve been alive, the conservative legal movement has coalesced around what I would describe as a jurisprudence of fuck-your-feelings. In this conception of the constitutional order, judges are not to behave as “activists” who concern themselves with fuzzy concepts like “equity” (whatever that means) or doing “justice” (same). Instead, they are to set aside their policy preferences and apply the law as written, no matter where the analysis takes them. To borrow a metaphor with which readers of this site are familiar: Properly understood, a judge’s job is to call balls and strikes, not to pitch or bat.
“Textualism means you are governed by the text. That's the only thing that is relevant to your decision,” the late Justice Antonin Scalia told Fox News’s Chris Wallace in 2012. “Not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.”
For this reason, it was more than a little startling to hear conservative justices spend their time on Tuesday fixated on a point that will be familiar to anyone with children who are old enough to talk. The legal authority for Biden’s plan is a 20-year-old federal statute that allows the Secretary of Education to “waive or modify” student debt obligations for borrowers affected by a national emergency. The statute’s text is neither complicated nor ambiguous. To anyone without a terminal case of Federalist Society brain, its relevance to an economic crisis stemming from a global health disaster that has dragged on for three years and counting does not require detailed explanation.
And yet, the conservative justices argued, there remains a fundamental problem with Biden’s plan: It just isn’t fair to those who would not benefit from it.
“I think it’s appropriate to consider some of the fairness arguments,” announced Chief Justice John Roberts, who posed an elaborate hypothetical about two high school graduates: one who borrows money to go to college, and the other who borrows money to start a lawn care business. The Biden plan, he argued, provides nothing to the businessman and yet forces him to subsidize the student. “Why isn’t that a factor that should enter into our consideration?” asked Roberts, apparently unable to fathom a more sympathetic debt-saddled person in America in 2023 than a guy who owns a business.
Roberts was not the only conservative justice with a newfound passion for freelance justice-doing. Justice Neil Gorsuch asked Solicitor General Elizabeth Prelogar whether the government had accounted for “costs to other persons in terms of fairness——for example, people who have paid their loans, or who plan their lives around not seeking loans, or people who are not eligible for loans in the first place?” Benefits programs create “winners and losers,” argued Justice Brett Kavanaugh, which raises “concerns” about “individual rights.” At least three times, Justice Samuel Alito demanded that Prelogar explain why the plan is “fair,” and accused her of dodging the question when she failed to answer to his satisfaction. For a movement that purports to focus on esoteric legal questions, the conservatives sure are quick to get philosophical whenever they feel aggrieved by the result.
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