“Neither a borrower nor a lender be.”

W. Shakespeare, Hamlet, Act I, scene 3

Marshall H. Tanick

More than six weeks since the U S. Supreme Court heard the consolidated challenges to the Biden administration’s massive student loan forgiveness program, the justices finally made a decision on the topic. But it wasn’t the case observers were expecting. While that high-profile appeal remains pending, the high court decided another one, or actually decided not to decide. In Sweet v. Everglades College, Inc., No. 3:19-cv-03674 (N. D. Cal. Nov. 16, 2022), cert. denied, April 23, 2023, the court last week refused to hear an unrelated challenge by a trio of college to the settlement of a $6 billion student debt forgiveness relating to loaned induced by alleged misrepresentation by a group of educational institutions, mainly for-profit colleges.

Revelatory remarks

While the Court’s declination of that matter didn’t give any hint as to how the jurists are going to rule within the next couple of months on the $14.5 billion academic amnesty, their remarks at oral argument on that case at the end of February was laden with distinct clues on what to expect when they get around to issuing an opinion before adjourning in late June for their summer vacations or, for Justice Clarence Thomas, his exotic circa-$500,000 “hospitality” vacation from a billionaire ultra-conservative backer.

In addition to the hints at what’s coming, the oral argument was also revelatory in several ways beyond the validity of the big Biden bailout, which even its most ardent backers now seem resigned to see sacked by the jurists.

The initiative would relieve debtors with Pell grants of up to $20,000 and non-Pell grantees of up to $10,000 for individuals with $125,000 or less annual income or households of up $250,000 yearly income, and full debt forgiveness for military service, nonprofit employees, and those working for federal, state, local, and tribal governments.

Minnesota matters

If implemented, it would extend to as many as 43 million eligible Americans. It would matter much to Minnesotans as the beneficiaries would include some 730,000 former and current college and university students here in Minnesota, about 12% of the state’s population.

The debt relief would, if upheld by the Supreme Court, come on the heels of a $23.6 million loan forgiveness arrangement devised by federal and state authorities, including Minnesota Attorney General Keith Ellison’s office in late 2021-early 2022 for students of two inter-related for-profit Minnesota schools, Minnesota College of Business and Globe University. They were entitled to the relief, coupled with some $15.6 million in cash restitution based on misleading representations made by those institutions regarding post-schooling job placement opportunities.

That relief stemmed from litigation begun several years earlier in Hennepin County District Court that winded its way up to the Minnesota Supreme Court challenging their deceptive business practices in a series of litigation.

The ensuing forgiveness program was part of an undertaking that at the time involved three other for-profit schools in Illinois, Indiana, and Colorado, handled through the U.S. Department of Education in coordination with local officials in those jurisdictions.

But the current and contentious Biden program seems on life support after remarks by the conservatives on the high court skewered it in the hearing on the consolidated lawsuits brought by objecting Republican-controlled states in Biden v. State of Nebraska & Department of Education v. Brown, Nos. 22-506,535.

The skepticism expressed from the bench during the unusually lengthy half-day oral arguments advanced in support and against the measure raised several interesting points, including the unmasking of what seem to be hypocrisy and inconsistency of some of the jurists.

Positions promulgated

First, the argument continued a pattern of the justices promulgating their positions from the bench. Rather than posing questions to the attorneys for the litigants to address concerns or flesh out uncertainties, as is taught in law schools and practiced in Moot Court competitions, which is the supposed purpose of oral argument, the justices used the occasion primarily as an exercise in articulating their own stances, which almost invariably these days accurately foretells not only how they will rule but what they will say, sometimes verbatim, in their written decisions.

The didactic proceeding appeared to bear out the view of the most taciturn of jurists, Clarence Thomas, who went nearly two decades before COVID introduced remote telephoning hearings (more about that later), without uttering a word from the bench, a persistent reticence he attributed to his desire to permit the lawyers to expound without interruptions and, he added, because oral argument is inconsequential, anyway.

So much for Socratic dialogue at the Supreme Court, which seems Greek to the current crop of jurists, or devil’s advocacy, for that matter, which also appears to have descended into the bowels of the bench.

Second, the views of two of the conservative sextet if Supreme Court jurists, Justices Neil Gorsuch and Samuel Alito, departed markedly from their supposed ideologies of judicial restraint and deference to administrative decision-making. Justice Gorsuch, a champion of “textualism,” construing laws strictly on the basis of their wording, not their equity, intent, or consequences, questioned the “fairness” of the debt relief initiative because it only effects current debtors, not past ones, and doesn’t extend to other types of loans and debts. The godfather of that tenet, Justice Antonin Scalia, once described it thusly: “Textualism means you are bound by the text…not whether the outcome is desirable…(b)ut the text of the statute…”

Yet, the issue of “fairness” is not supposed to be in the tool kit of “textualists” like Gorsuch. The conservative jurist’s 2019 book, “A Republic If You Can Keep It,” eschews considerations of equites and minimizes legislative intent in construing laws in lieu of the talismanic text like the 2003 measure, the Higher Education Relief Opportunities for Students (HEROES) Act used by the administration in constructing the program. But that statute, 20 U. S. C. §1098 aa-ee, contains broad textual language in authorizing discretionary actions that the secretary of education deems “necessary” to alleviate inequities in “emergency” situations, like the COVID pandemic, to relieve those debts.

Justice Gorsuch and some of his conservative colleagues have used their Scalia-bred “textualism” device when it suits their purpose to achieve a desired result, while eschewing it in other occasions when it does not lead to the outcome they want. His fidelity to textualism was admirably displayed in his authorship of the majority opinion in Bostock v. Clayton County, 140 S.Ct. 173 (2020) holding that the sex discrimination proscription in Title VII of the Civil Rights Act extends to disparate treatment based on sexual orientation because that is the only plausible way to interpret the word “sex” in the absence of any other terminology or illuminating legislative history.

But the champion of “textualism” and his conservative colleagues departed from that tenet in their decision last year in National Federation of Independent Business v. Department of Labor, 142 S.Ct. 641 (2022) rejecting an attempt by the Biden administration to require large employers to mandate COVID vaccinations or testing for employees under federal laws explicitly authorizing health and safety protocols. The textualists relied on the dubious ground that the vaccination-testing mandates did not address health and safety concerns, a remarkable deviation from the expressed texts of the underlying laws.

Justice Alito, perhaps an even more flinty conservative, also followed the same approach disregarding his favored “textualism” in the student debt case. His deviation stemmed from his view that the debt relief program is not “very sensible,” even though he and others of his ideological ilk repeatedly caution against judges assessing the wisdom of laws or administrative actions. That he does not think it is a prudent idea ought not matter to him and others practicing judicial restraint; yet it does when theory morphs into reality.

The inconsistency of these jurists in applying textualism when it suits their needs but discarding it when it stands in the way of reaching the results they wish to achieve strays from another Shakespearean admonition in the same passage from Hamlet as quoted above: “to thine own self be true.” (Speaking of Hamlet and the law, more about that in three weeks: Watch this space.)

The Biden forgiveness program, to be sure, has its imperfections in addition to its sizeable price tag. But that’s true of much legislation and administrative edicts that come out of the nation’s capital or the ones in St. Paul and the 49 other states in the country. Yet, the conservatives on the Supreme Court have repeatedly admonished against assessing those measures in the basis of their view of their wisdom or propriety, a task that they frequently remind should be reserved to the legislative and administrative decision-makers entrusted to do so.

Standing salvation

The only seeming salvation for the Biden initiative might be a procedural technicality: the lack of standing of the contesting states to challenge the program. That issue, raised by a couple of the judges spearheaded by Amy Coney Barrett, also is a hallmark of some conservative jurisprudence.

But that life-saver probably will be disregarded by the right-wing majority steamroller in its rush to judgment. Chief Justice John Roberts, who usually has a warm, fuzzy feeling for standing arguments did not seem enraptured by it, joining the other conservatives in moaning about inequities of the Biden relief plan and its imperfections, placing himself with his cohorts in the position of lawmakers and administrators entrusted with designing programs, rather than jurists interpreting and enforcing them.

COVID closures

It’s admirable that, due to COVID-related closures of the courts and other institutions and implementation of remote hearings, new procedures at the tribunal give the public an opportunity to hear the voices of the justices contemporaneous with the hearings.

Now, the court should enter the 21st Century and allow its proceedings to be televised, a proposition that will contribute both to “fairness” in the judicial process and is “very sensible,” features that ought to appeal to those two appellate jurists and others as well.

Because the remarks of the jurists at oral argument are so predictive of the outcome, what you hear is usually what you get. However, that’s all you get because the justices refuse to allow their proceedings to be seen on video broadcasts or live-streaming.

But that’s an issue for another time.

PERSPECTIVES POINTERS

Some More Scalia Sayings