By Narasimhan Vijayaraghavan
The Supreme Court has a long history of refraining from getting into the policy-making territory of the Executive branch. This principle is known as the separation of powers, and it is one of the most important checks and balances in our system of government.
The separation of powers doctrine holds that the three branches of government – the legislative, executive, and judicial – should be kept separate from each other. This is to prevent any one branch from becoming too powerful. The Supreme Court has interpreted this doctrine to mean that the Court should not second-guess the policy decisions of the Executive branch.
There are a few reasons why the Supreme Court refrains from getting into the policy-making territory of the Executive branch. First, the Court does not have the expertise to make policy decisions. Second, the Court does not have the democratic legitimacy to make policy decisions. That is where the complaint of ‘unelected tyranny’ comes in. Third, the Court’s involvement in policy-making would undermine the constitutional balance of power. It is true that there is no arithmetical accuracy to this dictum. If there is an ‘apparent constitutional breach’ courts do step in and rightly too. But, the norm is the reverse.
The recent dissents of Associate Justices Elena Kagan and Sonia Sotomayor in the Biden v. Nebraska judgment dt.30th June,2023, have huge lessons for our institutions as well. Judicial overreach is anathema in a democratic polity. Even if the Executive was found lax or indifferent or does it’s job in a manner not aligned with the vision of a court, it is not for judiciary to ‘make the policy’ or ‘make law’ or invent a ‘breach of constitutional convenience’. The language employed by Kagan and Sotomayor ring loud and clear and worth a listen in New Delhi too.
Justice Elena Kagan’s dissent is a scathing rebuke of the majority’s decision to invalidate President Biden’s student loan debt relief plan. Kagan argued that the majority had “no business deciding” the case, and that its decision was “a danger to a democratic order.”
Kagan first challenged the majority’s standing to hear the case. She argued that the states that challenged the policy did not have legal standing to do so, because they had not suffered any harm from the policy. Kagan also argued that the majority had exceeded its authority by applying the “major questions doctrine” to the case. The major questions doctrine is a legal principle that allows courts to strike down government regulations that are deemed to be too important or consequential. Kagan argued that the majority had misapplied the doctrine in this case, and that its decision was therefore “a dangerous precedent.”
Kagan then turned to the merits of the case.
She argued that the majority’s interpretation of the law was incorrect. She pointed out that the law in question, the CARES Act, explicitly gave the Secretary of Education the authority to “provide forbearance, cancellation, or other relief with
respect to loans” in response to a national emergency. Kagan argued that the Secretary’s student loan forgiveness plan was clearly within the scope of this authority.
Kagan concluded her dissent by warning that the majority’s decision was “a danger to a democratic order.” She wrote that the decision “undermines the Constitution’s careful balance of power between the branches of government.” She also warned that the decision “sets a dangerous precedent for future cases.”
Kagan’s dissent was widely praised by legal scholars and progressives. It was seen as a forceful and principled defense of the Biden administration’s student loan forgiveness plan. The dissent also raised important questions about the role of the Supreme Court in our democracy.
And Sonia Sotomayor went emotional in her dissent. The majority’s decision is “heartbreaking” and “profoundly wrong.” Sotomayor argued that the majority’s decision would have a devastating impact on millions of Americans. She wrote that the decision “will leave millions of borrowers drowning in debt, unable to afford homes, cars, and other necessities.”
The majority’s decision is “based on a misreading of the law.” Sotomayor toed Kagan in holding that the majority had misread the law in question, the CARES Act. She pointed out that the CARES Act explicitly gave the Secretary of Education the authority to “provide forbearance, cancellation, or other relief with respect to loans” in response to a national emergency. Sotomayor argued that the Secretary’s student loan forgiveness plan was clearly within the scope of this authority.
Sotomayor argued that the majority’s decision was a dangerous precedent that could be used to prevent future presidents from taking action to help struggling borrowers. She wrote that the decision “will make it harder for future presidents to use their lawful authority to address the student loan crisis.”
Sotomayor’s dissent was widely seen as a forceful and principled defense of the Biden administration’s student loan forgiveness plan. The dissent also raised important questions about the role of the Supreme Court in a democracy. She pointed out that thd majority’s decision “will have a significant impact on the lives of millions of borrowers” ; “is based on a misreading of the law”. Sotomayor concluded her dissent by writing that “the majority’s decision is a grave injustice.” She urged Congress to act to “correct this wrong.”
The last suggestion is for US Congress to ‘make law’ to ‘correct this wrong’. Is there a lesson for us too? The irrational exuberance of constitutional courts is flagged off in these dissents like never before, in a matter impacting lives of millions of lives of We the People.
(Author of Constitution Making & Working, OakBridge, is practicing advocate in the Madras High Court)