167. The Inconsistent Court Strikes Again

Comparing Monday's unexplained grant of emergency relief in the Department of Education downsizing case to how the justices handled President Biden's student loan program is ... telling.

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I wanted to put out a quick issue today to cover the unsigned and unexplained order that the Supreme Court handed down earlier this afternoon clearing the way for President Trump to significantly restructure (and radically downsize) the Department of Education. Justice Sotomayor wrote a 19-page dissent (joined in full by Justices Kagan and Jackson) that hits on all of the ways in which the government should not have been entitled to the relief the majority provided—including both why the government is unlikely to prevail on the merits and why the balancing of the equities indisputably favors the challengers. I’d encourage folks to read it for themselves.

I wanted to add one more point that is implicit in Justice Sotomayor’s dissent, but is worth saying out loud: The contrast between how the same justices handled President Biden’s student loan debt forgiveness program and how they’re handling another case about the Department of Education in a very similar procedural posture is not only striking, but it provides yet further fodder for an argument I’ve made before: To avoid the appearance that the justices are just voting their partisan policy preferences, it is absolutely imperative that the Court explain itself—especially in contexts, like this one, where its behavior appears to be inconsistent.

As folks may recall, the student loan case first reached the Court on a pair of emergency applications from the Biden administration—to vacate nationwide injunctions against the program that had been imposed by the Eighth Circuit (in a suit brought by a number of red states) and the Northern District of Texas (in a suit brought by private plaintiffs), respectively. In both cases, one of the administration’s central arguments for emergency relief was that the government was likely to prevail on the merits because the plaintiffs lacked Article III standing (that is, they weren’t injured by the policy they were seeking to challenge)—and that the standing obstacle was reason enough to allow the government to continue to implement its policy.

In both cases, the Court deferred its resolution of the applications while it considered the merits of the government’s appeals—rulings that had the effect of keeping the program on hold for an additional 6.5 months. After argument, the Court held (unanimously) that the private plaintiffs lacked standing; and it held 6-3 that one of the states had standing (in analysis I heavily criticized at the time). In other words, the Court kept a controversial Department of Education policy initiative paused for 6.5 months while it sorted out whether anyone had standing to challenge it—rebuffing the President’s request that the policy go back into place in the interim.

Contrast that with Monday’s ruling. In asking the justices to stay the district court’s injunction against the mass firings and restructuring of the Department of Education, the Trump administration’s principal argument was not that those measures were legal, but that the plaintiffs lacked Article III standing to challenge them. The best explanation for Monday’s ruling is that a majority of the justices agree that the government is likely to prevail on its standing argument—and, as has been the case so often in the Court’s recent approach to emergency applications, gave short shrift to the equities.

If that’s true, then we have this rather obvious contrast—where serious standing objections were not enough to justify emergency relief when it was the Biden administration looking to put its student loan debt relief plan back into effect, but where (to my mind, weaker) standing objections were enough to justify allowing the President to effectively strangle a critically important federal agency (and to defeat the various acts of Congress standing that agency up and giving it responsibilities it will now struggle to discharge). Perhaps there is a good explanation for why the standing concerns were sufficient to justify a stay here but not in the student loan cases (where, again, the Court unanimously agreed that the private plaintiffs lacked standing). I’ll confess that it’s possible such a distinction exists. It’s also possible that a majority found the government’s other arguments in support of a stay in this case persuasive—although there’s a reason why the government didn’t lead with them (and, in any event, Justice Sotomayor’s dissent seems to make quick work of them).

But to go back to a post I wrote a few weeks ago, that’s yet another reason why the Court needs to explain itself when it grants emergency relief—not just to provide guidance to lower courts and the relevant government actors (to say nothing of the public), but to rationalize what, at least at first blush, sure look like alarming inconsistencies in the Court’s behavior that seem best-explained not by a legal principle, but by which party controlled the White House (and, through it, the Department of Education) at the time of the Court’s ruling. Now, more than ever, that ought to be an impression the justices are ill-inclined to reinforce.

And yet, here we are—with the seventh different completely unexplained grant of emergency relief to the Trump administration in just the last ten weeks, and yet another one that is going to have massive real-world effects long before the justices ever confront whether what the government is doing is actually lawful.

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