The justices of the Supreme Court of the United States often rely, in their opinions contrary to the decisions they oppose, on an interpretation of the Constitution or a particular law that differs from the opinion expressed by the majority. On Friday, Justice Elena Kagan went further, accusing Chief Justice John Roberts of outright violating the Constitution by nullifying Joe Biden’s plan to cancel some of the debts of nearly 43 million American students.
Justice Roberts relied on a doctrine invented by conservative jurists—the “big issues” doctrine—to dismantle the administrative state. This doctrine requires express congressional authorization before regulators can take meaningful action on matters of significant importance and impact on society. It was invoked last year in another 6-3 resolution to limit the Environmental Protection Agency’s ability to limit greenhouse gas emissions from power plants.
It is a principle that has no constitutional basis and allows conservative Supreme Court justices to rise above the elected officials who make or enforce laws. All of this is often in favor of GOP donors and the priorities of their allies in the US Congress.
In the case of Joe Biden’s student debt plan, Justice Roberts rejected the administration’s argument that the HEROES Act allows the president to offer debt forgiveness on a large scale. But he did not base this refusal on the text of this law, whose full name is “Higher Education Relief Opportunities for Students.” He did so on the basis of the “big questions” doctrine, which has the advantage of allowing a few judges to replace themselves with the president elected by tens of millions of voters to determine what is good or bad for American society.
Justice Kagan did not hide her indignation. I quote a passage from his dissent that I reported Columnist The New York Times Pretty Boy :
From cover to cover, Today’s Opinion deviates from the requirements of judicial control. At the request of a party which has not been subjected to any prejudice, the majority decides a contentious issue of public policy concerning the politically responsible branches and the persons they represent. This is a big problem not only for governance, but also for democracy. Congress is of course a democratic institution. It responds, albeit imperfectly, to the preferences of American voters. And agency officials, though not self-elected, serve a president with the broadest political constituency. But this court? It is, by design, as detached as possible from the body politic. That is why the Court is supposed to stick to its mission: to adjudicate only cases and controversies, and to refrain from setting the nation’s policy on matters such as student loan forgiveness.
“The Court exercises power it does not have. It violates the Constitution,” Judge Kagan concluded.
As one can imagine, John Roberts did not appreciate the tone and content of Justice Kagan’s dissent and made it known in his own opinion.
The Chief Justice wrote in his opinion “It has become a disturbing feature of some modern opinions to criticize decisions with which they disagree as going beyond the proper role of the judiciary.” It is also important that the public is not misled. Such a misperception would be detrimental to this institution and our country. »
According to opinion polls, the majority of the American public has already concluded that John Roberts’ Supreme Court has overstepped its bounds. Perhaps the loss of credibility of its judges is due more to the conservative majority than to its three progressive justices who have denounced it.
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