A lawsuit filed by a right-wing group in Wisconsin that aims to overturn the Biden administration’s partial student debt relief program has made its way to the Supreme Court. This case is a chilling reminder that any progressive policy, no matter how inadequate, is almost automatically imperiled by the far-right dominated judiciary. Even though this measure leaves the bulk of the $1.75 trillion of total student loan debt in place, it has outraged a major section of the ruling class, which views education as a commodity to be bought and sold however “the market” dictates.
The emergency appeal to the Supreme Court, which was filed yesterday, rests on a benign-sounding but highly dangerous legal theory: the “major questions doctrine.” This holds that agencies that are part of the executive branch have no authority to issue legally binding rules on issues that are of “major” significance. Instead, the rightwing argues, only explicit authorization by act of Congress can constitutionally establish such regulations.
The obvious intent behind this theory is to make it extremely difficult to impose government regulations that infringe on capitalists’ ability to make profit. Every new rule would be subject to the notoriously inefficient, long and corrupt legislative process since federal agencies (including those created by Congress in the first place!) would no longer have the authority to make these decisions on their own.
Just in the last year, the major questions doctrine has been used to overturn the Environmental Protection Agency’s ability to regulate climate change-causing carbon emissions and OSHA’s ability to mandate COVID vaccinations to ensure safe workplaces. If the Supreme Court continues down this path, a wide range of other regulations aimed at protecting the health and well-being of the people will be on the chopping block. And the beneficiary is big business, which finds itself less restrained in its single-minded pursuit of profit.
The legal challenge brought against student debt relief also has a clearly racist character. In addition to invoking the “major questions doctrine,” the plaintiffs contend that the policy is unconstitutional because it seeks to address racial inequality by specifically helping Black student loan borrowers. They outrageously argue that policies designed to protect the rights of those who are subjected to racist oppression violate the equal protection doctrine of the 5th Amendment.
This case is being heard according to a procedure referred to as the “shadow docket.” The normal Supreme Court process is undemocratic enough — nine unelected, millionaire judges appointed for life make unchallengeable decisions affecting the lives of huge numbers of people. But under the shadow docket, such decisions can be made by a single judge. If a plaintiff wants to challenge a decision made by an appeals court but desires to do so on an emergency basis, they can request that their case be put on the shadow docket for expedited consideration. This hearing is handled by the Supreme Court justice assigned to manage the appeals circuit in question.
It used to be extremely uncommon for the court to consider a case using the shadow docket procedure. But this has changed in recent years as the Supreme Court ramps up an all-out campaign against the most basic democratic rights of the people. For instance, the shadow docket was used last year to overturn the federal moratorium on evictions and reestablish the “right” of landlords to kick workers out into the streets as the pandemic raged.
The judge assigned to handle the shadow docket appeal in this case is Amy Coney Barrett, a right-wing fanatic appointed by Donald Trump. She could decide to overturn student debt relief, refer it back to the full court for consideration, or reject it on narrow legalistic grounds that the plaintiffs lack standing to sue. Whatever the outcome, it is certain that the major questions doctrine and the racist legal rationale involved in this case will continue to surface as the courts attempt to eviscerate the rights of the working class.