There are no limits to what an extremist court might do
ROBERT REICH in Robertreich.Substack.Com
When I argued cases before the Supreme
Court in the 1970s, a challenger had to show they’d suffered a specific injury
that could be remedied by relief from a federal court. If they failed to
establish such standing, the high court would dismiss the case without
considering the merits of their claim.
The necessity to establish standing to
bring a case before the Supreme Court has been an important guardrail
preventing the court from getting into matters the Constitution has reserved
for the other branches of government.
But in Biden v. Nebraska —
striking down President Biden’s student loan program — the majority decided
that Missouri had standing to challenge the program. Why? Because a
quasi-independent state agency — the Missouri Higher Education Loan Authority
(MOHELA) — might suffer financial losses from the loan program. As Chief
Justice John Roberts wrote for the majority:
“The … plan harms MOHELA in the performance of its public function and so directly harms the State that created and controls MOHELA. Missouri thus has suffered an injury in fact sufficient to give it standing to challenge the Secretary’s plan.”
Directly harms
the state? Hello?
As Justice Elena Kagan wrote in her
dissent, “In adjudicating Missouri’s claim, the majority reaches out to decide
a matter it has no business deciding” — with a ruling that “blows through a
constitutional guardrail intended to keep courts acting like courts.”
From now on, a state can challenge any action of the federal government merely by setting up a quasi-independent agency indirectly affected by it.
Bad enough that the court’s majority is now
making up its own laws — disregarding the Supreme Court’s own precedents
it disagrees with, deciding Congress hasn’t authorized certain actions it
disagrees with, and finding certain practices it disagrees with to be
unconstitutional.
Bad enough that three of the justices now
in the majority were appointed by a man who lost the popular vote, who was
impeached twice, and who promoted an insurrection against the United States.
And two others were appointed by a man who also lost the popular vote and led
the nation into war in Iraq under false pretenses.
Now that the court has obliterated the
guardrail on what it can consider, there are no limits to what this least
democratic branch of government — and its extremist majority — might do.
Which is why it’s so important to reform
the court — in ways I’ve suggested here.
© 2021 robertreich.substack.com
ROBERT REICH is
the Chancellor's Professor of Public Policy at the University of California,
Berkeley, and a senior fellow at the Blum Center for Developing Economies. He
served as secretary of labor in the Clinton administration, for which Time
magazine named him one of the 10 most effective cabinet secretaries of the
twentieth century. His book include: "Aftershock" (2011), "The
Work of Nations" (1992), "Beyond Outrage" (2012) and,
"Saving Capitalism" (2016). He is also a founding editor of The
American Prospect magazine, former chairman of Common Cause, a member of the
American Academy of Arts and Sciences, and co-creator of the award-winning
documentary, "Inequality For All." Reich's newest book is "The
Common Good" (2019). He's co-creator of the Netflix original documentary
"Saving Capitalism," which is streaming now.