And a 5-to-4 conservative majority relied on similar standing concerns in June 2021 to hold that the Constitution foreclosed suits by some consumers who sought to challenge credit reporting companies that kept inaccurate records of their credit information — holding that it wasn’t enough that Congress believed such conduct should be legally actionable. In each of these cases, a central argument was that courts would have too much power if they had the right to defy the jurisdictional limits that they themselves have read into the Constitution, no matter how compelling the substantive arguments of those challenging the policy at issue might have been.
Under these rulings and the long-settled standing principles they reflect, neither set of plaintiffs in the student loan cases has even a strong claim to standing. In the case brought by two private plaintiffs (Department of Education v. Brown), their claimed injury is that they were denied a procedural chance to persuade the Education Department to adopt more expansive eligibility criteria. As implausible an argument as that is in the abstract, the larger problem is that the relief they are seeking, as Justice Sonia Sotomayor made clear, would not exactly redress their injury, since they’re seeking to have the entire program thrown out.
The standing arguments in the challenge brought by six red states (Biden v. Nebraska) are no closer to the mark. Five of the states have based their standing solely on the indirect economic effects of the program — effects that, even if they were more than just speculative (a 2013 Alito opinion requires them to be “certainly impending”), are hardly particularized. Only Missouri claims a direct injury: Its basic claim is that it can sue on behalf of the Missouri Higher Education Loan Authority, or MOHELA, which will be directly affected by the program. The problem for Missouri is that MOHELA is a quasi-independent entity — with its own ability to sue and be sued under Missouri law. And it has chosen not to sue here. Under the court’s limits on when a third party can sue to enforce the rights of others, that ought to be the end of the matter.
And yet during the oral argument, Justice Alito tried to stake out what even he suggested was a new possible standing argument — that Missouri should be allowed to sue on MOHELA’s behalf entirely because MOHELA is a state actor for at least some constitutional purposes. By that logic, any time that I, as a public university professor in Texas, am injured by a federal policy, the State of Texas could sue on my behalf.
Reasonable minds can differ as to the wisdom and even the legality of Mr. Biden’s student loan debt forgiveness program. They can also differ over whether federal courthouse doors ought to be opened more broadly to encompass more challenges to government action.
But what should not be subject to dispute is the hubris of the same justices turning their backs on a half-century’s worth of limitations on the court’s power that they articulated, all for the purpose of striking down a social policy they don’t seem to like adopted by a Democratic president. Such a move would provide yet another example of a supposedly bedrock principle of conservative jurisprudence being tossed aside now that the conservative majority is ascendant. And it would do nothing to rebut growing charges that the justices are partisan political actors as much as they are neutral, independent jurists — further eroding public confidence in the Supreme Court and in the judicial system more broadly
Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the “One First” weekly Supreme Court newsletter and is the author of the forthcoming book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
Stephen I. Vladeck
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