Associate Justice of the United States Supreme Court Amy Coney Barrett.
Evelyn Hockstein | Reuters
Fate cancels Biden administration’s sweeping plan $400 billion in student loan debt for tens of millions of Americans can hinge on the newest conservative member of the Supreme Court: Judge Amy Coney Barrett.
Barrett is the conservative justice who seems most unconvinced by the plaintiffs challenging student loan forgiveness, said Jed Shugerman, a professor of law at Fordham University. Specifically, Shugerman said, Barrett seems to disagree that they have proven they are eligible to sue.
“Barrett was loud and extremely upset about the verdict any plaintiff would have,” Shugerman said.
More from Personal Finance:
Why Social Security retirement age, payroll taxes may change
Experts argue Social Security retirement age shouldn’t go past 67
Income waiting to claim Social Security is ‘huge’
As a rule, plaintiffs must prove that a policy will injure them in order to challenge the policy in court.
That claim, long defended by conservative judges, especially former Justice Antonin Scaliato prevent people from using the legal system to fight policies they don’t like or agree with.
The six GOP-led countries brought a lawsuit against the plan Biden argued that debt forgiveness of up to $20,000 per borrower would reduce profits for companies in their state that offer federal student loans. That argument has centered on the Missouri Higher Education Loan Authority, or MOEHLA.
Nebraska’s attorney, James Campbellwho argued on behalf of the states before the judges on February 28, said Biden’s plan risks eating away at MOHELA’s operating revenue by as much as 40%.
Barrett does not appear to be satisfied with the plaintiff’s argument
But Barrett asked Campbell why MOHELA itself didn’t sue to block the plan instead of Missouri.
Officials at MOHELA recently speak it has nothing to do with Missouri Attorney General Eric Schmitt’s decision to sue the program.
“Do you want to address why MOHELA isn’t here?” Barrett asked.
“MOHELA doesn’t have to be here because the state has the right to speak for them,” Campbell replied.
Barrett was not satisfied with that answer.
“Why didn’t the state make MOHELA come then?” she asked. “If MOHELA is really an arm of the state… why don’t you just be the strong arm of MOHELA and say you have to pursue this lawsuit?”
Many commentators have asked, ‘Where is Missouri SG?’ It’s like, where’s Waldo?”
Jed Shugerman
Professor of Law at Fordham University
Campbell replied, “Sir, it’s a matter of state politics.”
Shugerman, a law professor, said Campbell struggled to explain how MOHELA’s loss of revenue would harm Missouri.
“Nebraska Attorney General is not convinced,” Shugerman said. “It’s a mess.”
Shugerman also criticized the decision to have Nebraska’s top attorney argue the case before judges instead of Missouri’s attorney general. That would be appropriate, he said, because Missouri is the state with the most injuries.
“Many commentators have asked, ‘Where is Missouri SG?’,” he said. “It was like, ‘Where’s Waldo?'”
The plan’s survival depends on 2 conservative votes
Barrett alone couldn’t save the show.
Shugerman said the libertarian judges — Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor — would almost certainly vote in favor of the plan.
On the other hand, three conservative judges, Clarence Thomas, Neil Gorsuch and Samuel Alito are likely to vote against it, he said.
As a result, the Biden administration will likely need to convince not only Barrett but at least one of the two other conservative members of the court, Chief Justice John Roberts and Judge Brett Kavanaugh.
“If she is the fourth voter, the question is will she be able to convince the fifth?” Shugerman said.
If the judges ignore the states’ lack of status, they risk allowing any state or individual to challenge almost any federal program, said Steven Schwinna law professor at the University of Illinois Chicago.
“This is not the way to run a federal democracy,” Schwinn said. “If plaintiffs have a problem with loan cancellation, they should resolve that issue through political processes.”
