The conservative campaign against judicial activism began, of course, with Brown v. Board of Education. Conservative intellectuals like Alexander Bickel described the courts, properly constrained, as the least dangerous branch. But now that principle - fueled by a long ideological campaign spearheaded by the lawyers and law profs of the Federalist Society -- has been abandoned. The tools of textualism and original public meaning gave way to "non-delegationism", deference to administrative agencies yielded to skepticism about the "Chevron doctrine" which deferred to agencies understanding of their own statutes, and regulations. But most recently that has yielded to the new Major Questions doctrine - formally embedded in last year's EPA v. West Virginia.
The "MQD" is not -as Justice Amy Barrett admits in the student loan case - a "textualist" reading, but rather a substantive tool. [See Beau Baumann in the Yale Journal of Regulation] After all - as the Department of Justice Office of Legal Counsel explained the HEROES Act [20 USC 1098] literally gives the Secretary of Education the authority to waive or suspend any statutory requirement so that "“recipients of student financial assistance . . . are not placed in a worse
position financially in relation to that financial assistance because of” a
national emergency." Some - like Boston University law professor Jed Shugerman - in an amicus brief opposing the administration - saw the Biden administration's move as pretext - it was not related to the pandemic emergency. It was, he suggested - just words seized upon to fulfill a campaign promise. Of course it was that - but the pandemic prompted many emergency measures. And that the loan cancellation program promised substantial impact is why we have elections.
Courts traditionally deferred to the elected branches. But not now. The MQD was deployed as demand that Congress speak "clearly" if the President is to take some major step. The Court thus deftly hamstrings both Congress and the Executive. The MQD appears no where in text. Of course at some point an action is so inconsistent with a statute that an Executive action cannot be justified. But where the language can be found to support the action courts should defer. But not now. Conservatives celebrate the reversal of fortune.
As Georgetown's Josh Chafetz has said this is a judicial power grab. Of course the response of some is - hypocrisy! that progressives are unhappy because the shoe is on the other foot. Liberals celebrated Brown v. Board of Education, Miranda, displacement of local and state authorities, and state laws barring same sex marriage. But now, say the critics liberals are unhappy because the Supreme Court majority has a different idea of what democracy demands.
Progressives lament judicial aggrandizement, the Imperial Supreme Court, etc. I am on their side of the debate. Like other progressives I see a century long betrayal of the post-Civil War Reconstruction Amendments 13, 14, and 15. I see Brown, etc. as efforts to restore what should have been but for the betrayal of Reconstruction.
Below, posted by the Law and Political Economy project [LPE] - are reactions to the Supreme Court setting aside the Biden administration's student loan forgiveness plan. The contrast with the Supreme Court's deference to Trump initiatives like the so-called border wall, and the promise to ban Muslim immigration is plain.
- GWC 7/11/2023
In the waning hours of its most recent campaign against a thriving modern society, the Supreme Court invalidated the Biden administration’s student debt cancellation program. Beyond directly plucking money from the pockets of tens of millions of borrowers, the decision signaled the continued willingness of the Court to substitute its own judgment for that of executive agencies and to impose its own policy preferences on the country. To help sort through the meaning and implications of this ruling, we asked Louise Seamster, Blake Emerson, Marshall Steinbaum, Ryann Liebenthal, Jonathan Glater, Persis Yu, and Luke Herrine for their initial reactions.
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