Chief Justice Roberts tamps down Kagan's judicial activism - again.
The Biden student loan ruling isn't the first time Kagan has shown her activist stripes
On July 30, the U.S. Supreme Court dropped its decision on President Biden’s student loan forgiveness attempt that would have effectively wiped out around $430 billion in student debt.
The decision was 6-3 and was delivered by Chief Justice Roberts with Justice Barrett filing a concurring opinion.
The ruling held that under the Higher Education Relief Opportunities for Students Act of 2003, Biden’s secretary of education doesn’t have the authority to establish a student loan forgiveness program.
“The Secretary asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not,” Roberts wrote in the majority opinion. “We hold today that the Act allows the Secretary to “waive or modify” existing statutory or regulator provisions applicable to financial assistance programs under the Education Act, not to rewrite that statute from the ground up.”
Roberts goes on for around a dozen or more pages demonstrating the education secretary overstepped but also showing how the lower courts had erred.
In a dissent joined by Justices Sotomayor and Jackson, Justice Kagan made multiple remarks disparaging the court.
The dissent can be summarized as the secretary of education should be able to do it because Congress said so. Literally, that is the underlying premise of Kagan’s argument. She wrote, “Either way, the Secretary did only what Congress had told him he could.”
Joined by Justice Barrett, Roberts also deconstructed Kagan’s argument the education secretary has the power to do so, writing, Aside from reiterating its interpretation of the statute, the dissent offers little to rebut our conclusion that “indicators from our previous major questions cases are present” here.”
Roberts went on to write, “But in light of the sweeping and unprecedented impact of the Secretary’s loan forgiveness program, it would seem more accurate to describe the program as being in the “wheelhouse” of the House and Senate Committees on Appropriations.”
Even the majority opinion footnotes were a bit on the scathing side:
The dissent begins on page 48 and, when taken in its entirety, is arguably the very judicial activism that she herself protests throughout her own dissent.
Kagan’s very first sentence is “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.”
She goes on to write, “The Court’s first overreach in this case is deciding it at all,” and that the majority exceeded "the permissible boundaries of the judicial role" in its decision.
Kagan’s dissent drew fire from the chief justice.
“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,” wrote Roberts. “Today, we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite”; and that our precedent— old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decision making in doing so.
“Reasonable minds may disagree with our analysis—in fact, at least three do. See post, p. ___ (KAGAN, J., dissenting),” Roberts continued. “We 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.”
More To The Story
This is not the first time Kagan, an Obama administration nominee, has shown her activist stripes nor is it the first time Roberts has had to check Kagan.
In the summer of 2022, she dissented from the majority opinion in the case of West Virginia v. EPA, which was another 6-3 decision. Former Justice Breyers and Sotomayor joined her.
In that case, the court had ruled against President Biden’s claimed authority to implement regulations to reduce carbon emissions at power plants under the Clean Air Act.
In that dissent, Kagan characterized the majority opinion as “frightening.”
“The Court appoints itself—instead of Congress or the expert agency—the decisionmaker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent,” Kagan said in her conclusion.
Earlier in the dissent, she wrote, “Whatever else this Court may know about, it does not have a clue about how to address climate change.”
As documented by National Review, that summer following the Dobbs decision, Kagan went on to disparage the court and its legitimacy during public events.
The National Review article notes Kagan’s claims of being an originalist during her confirmation hearings, but that “Once on the Court, of course, Kagan became one of the most likely justices to oppose originalist positions in cases that divided the Court.”
Kagan was on a roll after Northwestern.
“Judges create legitimacy problems for themselves ... when they instead stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences,” Kagan said at a live streamed event held at Temple Emanu-El in New York.
Roberts while at a different event in Colorado, appeared to hit back by stating “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”
As reported by the Wall Street Journal, Kagan hit an event at Salve Regina University in Newport, Rhode Island where she allegedly slammed the court again.
Across the court’s history, “the very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions,” Justice Kagan said. “The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process.”
Given Kagan’s remarks both outside and inside the court, who exactly is doing the delegitimizing?
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