Any bets on Biden v. Nebraska (2023)?

[Damocles]

I think this is an interesting case that could honestly go either way. I’m personally affected by the outcome of this case. I have been following the developments closely because of this.

I could see Gorsuch siding with Jackson, Kagan, and Sotomayor, with Barrett in concurrence, to uphold the student debt relief program.

Obviously, Thomas and Alito would both be ardently opposed, strictly on ideological grounds. As for where Kavanaugh and Roberts end up is anyone’s guess.

[brucejoel99]

A 5-4 opinion by ACB with her & Kav joining the libs to form the majority holding that the plaintiffs lack injury-in-fact standing to challenge the program; a Kav concurrence whining about the merits as much as possible while still acknowledging that they're unreachable without any standing; & the Chief, Alito (joined by Thomas), & Gorsuch each dissenting separately.

[Skill and Chance]

This one is interesting because Roberts seemed more adamant about striking down the program than some of the other conservatives.

[NewYorkExpress]

A 4-4-1 decision.

The three liberals and Coney Barrett will find that that the Student Loan Forgiveness is constitutional.

The remaining (non-Kavanaugh)-conservatives will write a minority opinion that it is not constitutional.

Kavanaugh won't take a position on whether it's constitutional at all, and will instead devote a separate opinion arguing that the case (and any other related case) should be dismissed for lack of standing.

[SteveRogers]

A 4-4-1 decision.

The three liberals and Coney Barrett will find that that the Student Loan Forgiveness is constitutional.

The remaining (non-Kavanaugh)-conservatives will write a minority opinion that it is not constitutional.

Kavanaugh won't take a position on whether it's constitutional at all, and will instead devote a separate opinion arguing that the case (and any other related case) should be dismissed for lack of standing.

It’s not a constitutional question. It’s a question of statutory authority.

[politicallefty]

A 4-4-1 decision.

The three liberals and Coney Barrett will find that that the Student Loan Forgiveness is constitutional.

The remaining (non-Kavanaugh)-conservatives will write a minority opinion that it is not constitutional.

Kavanaugh won't take a position on whether it's constitutional at all, and will instead devote a separate opinion arguing that the case (and any other related case) should be dismissed for lack of standing.

It’s not a constitutional question. It’s a question of statutory authority.

I don't know. The so-called Major Questions Doctrine seems to be some new warped view of separation of powers. Under any other mode of interpretation, the Biden Administration would win this case easily. Textualism isn't so important to the right when it doesn't fit their purposes.

[Skill and Chance]

A 4-4-1 decision.

The three liberals and Coney Barrett will find that that the Student Loan Forgiveness is constitutional.

The remaining (non-Kavanaugh)-conservatives will write a minority opinion that it is not constitutional.

Kavanaugh won't take a position on whether it's constitutional at all, and will instead devote a separate opinion arguing that the case (and any other related case) should be dismissed for lack of standing.

It’s not a constitutional question. It’s a question of statutory authority.

I don't know. The so-called Major Questions Doctrine seems to be some new warped view of separation of powers. Under any other mode of interpretation, the Biden Administration would win this case easily. Textualism isn't so important to the right when it doesn't fit their purposes.

MQD seems roughly equivalent to putting an expiration date on broad agency delegations, requiring new authorization by Congress to act on new situations not originally discussed in the law (COVID, CO2 emissions, etc.)?

This feels potentially devastating to the federal left, because would effectively give Senate Republicans a perpetual veto over any novel regulatory moves.

[politicallefty]

I don't know. The so-called Major Questions Doctrine seems to be some new warped view of separation of powers. Under any other mode of interpretation, the Biden Administration would win this case easily. Textualism isn't so important to the right when it doesn't fit their purposes.

MQD seems roughly equivalent to putting an expiration date on broad agency delegations, requiring new authorization by Congress to act on new situations not originally discussed in the law (COVID, CO2 emissions, etc.)?

This feels potentially devastating to the federal left, because would effectively give Senate Republicans a perpetual veto over any novel regulatory moves.

The side that's arguing for this new standard just so happens to be the side that was beating the strict textualist drum for decades. All I see is this Court just striking down that which it does not like. There are no objective standards. It's completely arbitrary. Using legislative intent was traditionally an anathema to the conservative wing of the Court. MQD cannot exist without doing away with textualism and instead using legislative intent. I could go on, but Justice Kagan is a better writer than I am and her dissent in West Virignia v. EPA is nothing short of exceptional and lays out the case quite well.

[Skill and Chance]

I don't know. The so-called Major Questions Doctrine seems to be some new warped view of separation of powers. Under any other mode of interpretation, the Biden Administration would win this case easily. Textualism isn't so important to the right when it doesn't fit their purposes.

MQD seems roughly equivalent to putting an expiration date on broad agency delegations, requiring new authorization by Congress to act on new situations not originally discussed in the law (COVID, CO2 emissions, etc.)?

This feels potentially devastating to the federal left, because would effectively give Senate Republicans a perpetual veto over any novel regulatory moves.

The side that's arguing for this new standard just so happens to be the side that was beating the strict textualist drum for decades. All I see is this Court just striking down that which it does not like. There are no objective standards. It's completely arbitrary. Using legislative intent was traditionally an anathema to the conservative wing of the Court. MQD cannot exist without doing away with textualism and instead using legislative intent. I could go on, but Justice Kagan is a better writer than I am and her dissent in West Virignia v. EPA is nothing short of exceptional and lays out the case quite well.

IDK though, they have been willing to use legislative intent style arguments over a strict literal reading in favor of "liberal" positions every now and then, too.  Most notably King v. Burwell.  The conservative dissents in Bostock questioned whether incorporating trans issues into sex discrimination was the intent of the 1960's congress. 

[politicallefty]

IDK though, they have been willing to use legislative intent style arguments over a strict literal reading in favor of "liberal" positions every now and then, too.  Most notably King v. Burwell.  The conservative dissents in Bostock questioned whether incorporating trans issues into sex discrimination was the intent of the 1960's congress.

The liberals have never had an orthodox viewpoint against legislative intent the way conservatives traditionally have. I think of the issues with King v. Burwell is that the law would have become nonsensical if the Court had ruled the other way. Textualism is not necessarily the same thing as literalism. That said though, the dissent did apply a very strict textualist standard. (The ACA cases really are a big mess overall though.)

Bostock split the conservative wing though. Gorsuch and Roberts took the strict textualist position, while Kavanaugh, Alito, and Thomas decided to play the legislative intent card. There's no way someone like Scalia would have gone along with the reasoning of that dissent. While I have a hard time seeing him join the majority, you would've never seen reasoning like that from a Scalia on a statutory interpretation case.

Scalia kept the conservatives anchored towards specific canons of interpretation. Kennedy kept the Court from veering too far off in one direction or the other. Now, the conservatives just basically seem to pick whatever method best fits the outcome they want and they go from there. In other words, heads I win, tails you lose. I've seen nothing to convince me otherwise.

[Skill and Chance]

IDK though, they have been willing to use legislative intent style arguments over a strict literal reading in favor of "liberal" positions every now and then, too.  Most notably King v. Burwell.  The conservative dissents in Bostock questioned whether incorporating trans issues into sex discrimination was the intent of the 1960's congress.

The liberals have never had an orthodox viewpoint against legislative intent the way conservatives traditionally have. I think of the issues with King v. Burwell is that the law would have become nonsensical if the Court had ruled the other way. Textualism is not necessarily the same thing as literalism. That said though, the dissent did apply a very strict textualist standard. (The ACA cases really are a big mess overall though.)

Bostock split the conservative wing though. Gorsuch and Roberts took the strict textualist position, while Kavanaugh, Alito, and Thomas decided to play the legislative intent card. There's no way someone like Scalia would have gone along with the reasoning of that dissent. While I have a hard time seeing him join the majority, you would've never seen reasoning like that from a Scalia on a statutory interpretation case.

Scalia kept the conservatives anchored towards specific canons of interpretation. Kennedy kept the Court from veering too far off in one direction or the other. Now, the conservatives just basically seem to pick whatever method best fits the outcome they want and they go from there. In other words, heads I win, tails you lose. I've seen nothing to convince me otherwise.

You would think cultural conservatives would like legislative intent though, because it often allows them to "go back in time."  I can see why businesses wouldn't like it (gives regulators and plaintiffs a 2nd bite at the apple with less predictable results, but there's a whole constellation of issues around "How Christian can the government legally be?" where the literal text goes against the right wing position while tradition favors it. 

TBH there have always been 2 or 3 liberals on the court who are nearly 100% in make it up as you go along to further ideological goals mode basically since the New Deal.  The fact that there are now 2 or 3 conservatives willing to do the same isn't a huge deal IMO.  If it gets to 4+, that would be a different story.  Biden getting to replace Breyer instead of Trump is a much bigger deal for the long run than it looks like. 

[brucejoel99]

Scalia kept the conservatives anchored towards specific canons of interpretation. Kennedy kept the Court from veering too far off in one direction or the other. Now, the conservatives just basically seem to pick whatever method best fits the outcome they want and they go from there. In other words, heads I win, tails you lose. I've seen nothing to convince me otherwise.

John Roberts: "All of this, falling apart like this, is on you."

Sam Alito: "Wow. *laughs* Wow! Oh, that's some kind of logic right there, Chief. You screw up, piss Durbin off so much that he looks into all of our financial disclosures, & now, suddenly, this is all my fault. Why don't you walk me through this, Chief?"

John Roberts: "We had a good thing, you stupid son of a bitch! We had Scalia & Kennedy. We had a 4-1-4 Court. We had everything we needed, & it all ran like clockwork. You could've shut your mouth, joined or concurred & made as much money as you ever needed. It was perfect. But, no, you just had to blow it up. You & your pride & your ego! You just had to undo Sandra's overruling of you in Casey. If you'd done your job, known your place, we'd all be fine right now."

[politicallefty]

You would think cultural conservatives would like legislative intent though, because it often allows them to "go back in time."  I can see why businesses wouldn't like it (gives regulators and plaintiffs a 2nd bite at the apple with less predictable results, but there's a whole constellation of issues around "How Christian can the government legally be?" where the literal text goes against the right wing position while tradition favors it. 

TBH there have always been 2 or 3 liberals on the court who are nearly 100% in make it up as you go along to further ideological goals mode basically since the New Deal.  The fact that there are now 2 or 3 conservatives willing to do the same isn't a huge deal IMO.  If it gets to 4+, that would be a different story.  Biden getting to replace Breyer instead of Trump is a much bigger deal for the long run than it looks like.

This isn't new for conservatives, but it hasn't existed for a very long time. Look at 1892's Church of the Holy Trinity v. United States. It's no surprise that that decision preceded the beginning of the Lochner Era by just a few years. In terms of constitutional interpretation, conservatives won't touch substantive due process. That doesn't mean they won't use something else to implement their designs for the nation. As far as religion goes, they're working to gut the Establishment Clause as we speak.

As for your second paragraph, the left on the Court has never been as organized as the conservatives are right now. I think there are at least four votes that are willing to make it up as they go along. The Warren Court was dealing with major constitutional issues mostly involved the Bill of Rights, but there were was a lot more ideological diversity on that Court. Justice Black was a textualist New Dealer. Justice White was probably the closest thing to a conservaDem. Who were the liberals that were making it up as they went along?

John Roberts: "All of this, falling apart like this, is on you."

Sam Alito: "Wow. *laughs* Wow! Oh, that's some kind of logic right there, Chief. You screw up, piss Durbin off so much that he looks into all of our financial disclosures, & now, suddenly, this is all my fault. Why don't you walk me through this, Chief?"

John Roberts: "We had a good thing, you stupid son of a bitch! We had Scalia & Kennedy. We had a 4-1-4 Court. We had everything we needed, & it all ran like clockwork. You could've shut your mouth, joined or concurred & made as much money as you ever needed. It was perfect. But, no, you just had to blow it up. You & your pride & your ego! You just had to undo Sandra's overruling of you in Casey. If you'd done your job, known your place, we'd all be fine right now."

RBG's death is what ended the very brief extreme power Roberts had. On most issues, this is effectively the Alito Court. That is truly terrifying.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

As for your second paragraph, the left on the Court has never been as organized as the conservatives are right now. I think there are at least four votes that are willing to make it up as they go along. The Warren Court was dealing with major constitutional issues mostly involved the Bill of Rights, but there were was a lot more ideological diversity on that Court. Justice Black was a textualist New Dealer. Justice White was probably the closest thing to a conservaDem. Who were the liberals that were making it up as they went along?

Justice Douglas, all but self-admittedly so. He's the only one who comes to mind, and he did author a ton of concurrences when he thought the majority opinion was excessively anchored in something other than ideology, but he did exist.

[politicallefty]

As for your second paragraph, the left on the Court has never been as organized as the conservatives are right now. I think there are at least four votes that are willing to make it up as they go along. The Warren Court was dealing with major constitutional issues mostly involved the Bill of Rights, but there were was a lot more ideological diversity on that Court. Justice Black was a textualist New Dealer. Justice White was probably the closest thing to a conservaDem. Who were the liberals that were making it up as they went along?

Justice Douglas, all but self-admittedly so. He's the only one who comes to mind, and he did author a ton of concurrences when he thought the majority opinion was excessively anchored in something other than ideology, but he did exist.

I can't disagree there, but Justice Douglas ended up on his own in his later years. I think Schlesinger v. Holtzman is the prime example of that. If Justice Marshall was going out of his way like that, something was very wrong. Douglas was certainly in a realm of his own in the 1970s.

[Ferguson97]

5-4 in favor of Biden

Libs + ACB majority w/ a Kavanaugh concurrence. Thomas, Alito, Gorsuch, & Roberts dissent.

[Torie]

5-4, but more likely 6-3 for Nebraska.

https://reason.com/volokh/2023/02/28/thoughts-on-todays-supreme-court-student-loan-forgiveness-oral-arguments/

[brucejoel99]

👀👀

https://twitter.com/aissarcanchola/status/1669818001993117696

[DaleCooper]

Nebraska. One of the conservatives might side with Biden to make it look less partisan but I'd be stunned if they let this happen.

[politicallefty]

My concern is the opinion distribution right now. Roberts and Alito only have three each right now (Kavanaugh does as well, but he's already written for February). Roberts would obviously be very serious cause for alarm and Alito would be a guaranteed defeat for the Biden Administration. Roberts doesn't tend to get shorted in terms of overall opinions. For it to be Kagan, Barrett, or Jackson, one of them would have to be writing seven opinions for the term (and Jackson is extremely unlikely considering this is her first year on the Court). It's hard seeing either or both Roberts and Alito having only five decisions overall. As for Gorsuch, I just don't see him likely being the author.

[Skill and Chance]

My concern is the opinion distribution right now. Roberts and Alito only have three each right now (Kavanaugh does as well, but he's already written for February). Roberts would obviously be very serious cause for alarm and Alito would be a guaranteed defeat for the Biden Administration. Roberts doesn't tend to get shorted in terms of overall opinions. For it to be Kagan, Barrett, or Jackson, one of them would have to be writing seven opinions for the term (and Jackson is extremely unlikely considering this is her first year on the Court). It's hard seeing either or both Roberts and Alito having only five decisions overall. As for Gorsuch, I just don't see him likely being the author.

It's possible someone lost a majority and you also have to factor in whatever is going on with Moore v. Harper.

[politicallefty]

My concern is the opinion distribution right now. Roberts and Alito only have three each right now (Kavanaugh does as well, but he's already written for February). Roberts would obviously be very serious cause for alarm and Alito would be a guaranteed defeat for the Biden Administration. Roberts doesn't tend to get shorted in terms of overall opinions. For it to be Kagan, Barrett, or Jackson, one of them would have to be writing seven opinions for the term (and Jackson is extremely unlikely considering this is her first year on the Court). It's hard seeing either or both Roberts and Alito having only five decisions overall. As for Gorsuch, I just don't see him likely being the author.

It's possible someone lost a majority and you also have to factor in whatever is going on with Moore v. Harper.

It's possible, but that's quite rare (it doesn't really show in the end of term statistics). And I was already accounting for the possibility of Moore being DIGed or otherwise mooted. If that happens, we'll know who probably had it based on whoever is left without an opinion for December. Either way, someone very likely had a full draft opinion ready months ago.

One of the main complicating factors for this term is that a number of these cases are or might end up as 2-for-1 deals (Twitter/Google, affirmative action, student loans, and I think one or two other low profile issues). The February sitting was already short with six cases, but in reality it's really only four. I really can't see Department of Education v. Brown ending up as anything other than being merged with Biden v. Nebraska or a per curiam decision.

[MillennialModerate]

Just saw this thread - the fact some people here thinking there is any chance the court doesn’t block this is WILD to me. It’s as if you guys haven’t been paying attention

[brucejoel99]

Just saw this thread - the fact some people here thinking there is any chance the court doesn’t block this is WILD to me. It’s as if you guys haven’t been paying attention

[Skill and Chance]

Just saw this thread - the fact some people here thinking there is any chance the court doesn’t block this is WILD to me. It’s as if you guys haven’t been paying attention

For ideological reasons the conservative legal movement has long sought to narrow who has standing to sue in most cases.  This case cuts strongly against that long term effort.  The 3 conservative justices who take legal tradition most seriously seem to have noticed.