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Activists with The Center for Popular Democracy Action hold photos of U.S. Supreme Court justices as they block an intersection during a demonstration in front of the U.S. Supreme Court on December 01, 2021 in Washington, DC.
(Photo: Chip Somodevilla/Getty Images)
The Radical Right-Wing Court Has Destroyed a Crucial Judicial Guardrail
Now that the court has obliterated the distinction of what constitutes legal standing, there are no limits to what this least democratic branch of government — and its extremist majority — might do.
Jul 03, 2023
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 on Friday, 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.
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This country and this world are at a monumental crossroads. US voters have an opportunity to beat back the forces of fascism and confront the billionaires who are rigging the economy, our media system, and our democracy, making it increasingly impossible for ordinary people to get by. We’re not just talking about the election. We’re talking about what must be done once these fascist elements are vanquished from power. We need a bolder set of solutions than what either major party has so far been willing to offer and a working-class movement ready to fight like hell for it. Trump didn't emerge from nowhere. The conditions that fueled MAGA authoritarianism were created by decades of radical neoliberal economic policies and a corrupt political system dominated by corporate interests. They slashed taxes on the super-rich, promising that the benefits would trickle down. They said giveaways to the corporate titans would make life more affordable for the rest of us. It was all bullshit. And when a bitter, betrayed populace searches for someone to blame, right-wing demagogues have little trouble finding scapegoats. People know when they're being lied to, but you won't hear any of this from the corporate media. Only independent journalism—powered and funded by people who believe in building a better world—can deliver truly trustworthy daily news. If you share our vision, please contribute whatever you can to sustain our work. |
© 2021 robertreich.substack.com
Robert Reich
Robert Reich is professor emeritus of public policy at Berkeley and former US secretary of labor. His latest book is the No. 1 New York Times best-seller, "Coming Up Short."
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 on Friday, 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.
Robert Reich
Robert Reich is professor emeritus of public policy at Berkeley and former US secretary of labor. His latest book is the No. 1 New York Times best-seller, "Coming Up Short."
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 on Friday, 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.
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