By Jim Dugan
Justice Elena Kagan (joined by Sonia Sotomayor and Ketanji Jackson) wrote an important dissenting opinion in Biden v. Nebraska—the recent Supreme Court case concerning student debt relief. It wasn’t important because it voiced the progressive minority view of a ruling which further enforced the state policy of a country whose identity is rooted in settler colonialism, capitalist inequality, and enslavement-turned-apartheid-turned-mass-incarceration. These dissenting opinions have been consistent through time—sometimes they are left in the dustbins; sometimes they are invoked in subsequent opinions of more popularly progressive times to overturn (in liberal fashion) historically horrific policy. Those are important. But this isn’t what makes Kagan’s dissent unique. What Kagan has done, perhaps without full intention, is acknowledge in a published opinion that the Supreme Court may not live up to its ideal as a neutral arbiter—and may, in contrast, be a fundamentally undemocratic institution that sits on the side of elite power. Possibly in those aforementioned dustbins, this has been said before—but never in our era with such a high-profile case.
Justice John Roberts drafted the majority opinion, joined by Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Six despot elites (Roberts—Harvard Law; Thomas—Yale Law; Alito—Yale Law; Gorsuch—Harvard Law; Kavanaugh—Yale Law; Barret—Notre Dame Law) were able to strike down a policy favored by Congress and the Executive Branch which alleviated some of the financial woes of nearly 40 million people. Justice Kagan no doubt recognized the irony of a political body which routinely gives flowers to the idea of American Democracy despite being itself the functioning antithesis. As the dissent reads, even though the Court “is, by design, as detached as possible from the body politic,” it decided as final verdict “that some 40 million Americans will not receive the benefits the plan provides, because (so says the Court) that assistance is too ‘significan[t].’” Justice Kagan noted the Supreme Court was selecting itself as “the arbiter—indeed, the maker—of national policy” and in doing so has become "a danger to a democratic order."
It is undisputable that there is no democratic restraint on the Court (in fact, twice now a president who faced impeachment proceedings [first Nixon, then Trump] has appointed at least three individuals)—to call it a body of autocrats is not unreasonable. As Keeanga-Yamahtta Taylor wrote in her New Yorker piece, The Case for Ending the Supreme Court as We Know It, the Court is “the branch of government that is least accountable to the American public” and “has tended, for most of its history, toward a fundamental conservatism, siding with tradition over more expansive visions of human rights.” In that article, Taylor summarized a history of biased and contradictory opinions that shifted with the tides of political power and pressure—and affirmed that “calling into question the fundamentally undemocratic nature of the court” was a necessary act should we wish “to secure our rights and liberties in the United States.” Calls to abolish the Supreme Court were not common when Taylor raised the possibility in 2020. And yet, less than three years later, the same concerns which justified that consideration have now been voiced from within the chambers of the Supreme Court itself. And while Kagan isn’t likely to soon join the masses in calling for the abolition of the Court, what her dissent stands for worried Justice Roberts enough for him to end his majority opinion by calling out the “disturbing feature” of questioning “the proper role of the judiciary.” Causing misperception, Roberts claimed, “would be harmful to this institution and our country.”
But what Roberts calls misperception is anything but. It is seeing through the ideological construction of the Supreme Court as a removed and objective overseer, and—with candor—recognizing it for what it is: a political body that has the ability to curtail any progressive, egalitarian-oriented thrust for the benefit of its own Class. What the Court’s right-wing majority doesn’t want is the Public seeing the Supreme Court as an appendage to Capital and the U.S. State; and as an obstacle in our struggle for a more equitable, peaceful, and climate-stable world. They call this conclusion a misperception, and while we don’t need Kagan to tell us that we are right to think otherwise, it is striking that she did.
Aside from voiding the possibility of immediate and much needed financial relief, the most concerning thing about Biden v. Nebraska is how it continues to lay the groundwork for the Court’s ability to usurp any significant action that may be introduced to alleviate suffering as we inevitably enter new eras of economic (and environmental) crisis. The Court has now, for a third time in recent terms, invoked the ‘major questions’ doctrine to prevent forms of structural relief/industry regulation (see alsoWest Virginia v. EPA [preventing regulation of carbon emissions related to climate change]; Alabama Assn. of Realtors v. DHH [invalidating the CDC’s eviction moratorium]). What this chain of decisions indicates is that even the hard work of mobilizing to pressure politicians to act won’t be enough to secure grassroots victories. While this may be daunting to admit, it is not surprising nor is our situation unique in history. For instance, as Karl Marx wrote in his 1871 text, The Civil War in France, the Paris Commune also identified the need for judicial functionaries to be “divested” of their “sham independence” and called for judges—like other public servants—“to be elective, responsible, and revocable.” This may be a path forward to gain democratic control over the judiciary in our own extreme times. But to be in a position to design a judicial system that works as a vehicle for our side of the struggle, we must first abolish the one that currently exists. In sum, it all begins with the notion that Keeanga-Yamahtta Taylor left us with in 2020: “It is long overdue to end the Court’s undemocratic role in U.S. society”—Now we can quote Kagan to prove it.
