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Tuesday, July 11, 2023

The Radical Right-Wing Court Has Destroyed a Crucial Judicial Guardrail

There are no limits to what an extremist court might do

ROBERT REICH in Robertreich.Substack.Com

One ruling hidden inside one of the Supreme Court’s horrendous decisions last week hasn’t got nearly the attention it deserves: the court’s radical expansion of who has standing to bring cases before the court.

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

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.