SCOTUS on Student Loan Forgiveness: Nope

"Spicy Chiefy."

By and
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For Advisory Opinions’ purposes, the Supreme Court term is over. Sarah and David return to share their end-of-term thoughts and feelings, David’s crankiness about the student loan forgiveness commentary, look to the next term and:
–Student loan forgiveness is dead
–D.O.E. v. Brown
–Compelled speech in Colorado
–NYT: I Teach at an Elite College. Here’s a Look Inside the Racial Gaming of Admissions

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Comments (80)
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  1. Russell J

    Dueling “The Hunt for Red October” quotes. Haha. This business will get out of control…

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  2. David Keating

    Sarah,

    On the pod you said Kagan was a "free speech maximalist, which she has done many many times since her time on the Court. Her thumb is always on the scale of speech." David said "yep."

    Often she is, but you overstate her views on the 1A. Her thumb is not always on the scale for speech. Far from it.

    Her ruling in 303 Creative is not that suprising given her record.

    Priot to this term, here is how she has voted on the 1A cases since she's been on the Court. By my count, she supported free speech, press, assembly or petition rights in 13 cases and opposed them in 15 cases. If you only count political speech cases, the ratio is worse. It depends on how you define political speech, but it may be only two in favor and seven times against.

    Kagan 1A position Case
    A : Americans for Prosperity Foundation v. Bonta, Dissent Sotomayor, joined by Breyer, Kagan
    A : Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, Kagan dissenting.
    NA : Borough of Duryea v. Guarnieri, the Court ruled that "a government employer's allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee's petition relates to a matter of public concern." Majority Kennedy, joined by Roberts, Ginsburg, Breyer, Alito, Sotomayor, Kagan. IMHO, it’s not a clear cut 1A issue.
    A : City of Austin v. Reagan National Advertising of Austin, LLC, Majority Sotomayor, joined by Roberts, Breyer, Kagan, Kavanaugh, to restrict speech
    A : Expressions Hair Design v. Schneiderman, Majority
    NA : FCC v. Fox Television Stations, Inc. (2012), Majority Kennedy, joined by Roberts, Scalia, Thomas, Breyer, Alito, and Kagan. Decided on due process grounds, not the 1A.
    A : FEC v. Ted Cruz for Senate, Dissent Kagan, joined by Breyer, Sotomayor
    NA : Friedrichs v. California Teachers Association, non-precedential per curiam, Janus taken later
    A : Harris v. Quinn (issue similar to Janus), Dissent Kagan, joined by Ginsburg, Breyer, Sotomayor
    F : Heffernan v. City of Paterson, Majority Breyer, joined by Roberts, Kennedy, Ginsburg, Sotomayor, Kagan
    NA : Hoeper v. Air Wisconsin – I’m not counting this one. A convoluted case relating to defamation.
    A : Houston Community College System v. Wilson, unanimous. IMHO, anti-speech, but the opinion was limited.
    F : Iancu v. Brunetti, Majority Kagan, joined by Thomas, Ginsburg, Alito, Gorsuch, Kavanaugh
    A : Janus v. AFSCME, Dissent Kagan, joined by Ginsburg, Breyer, Sotomayor
    A : Knox v. Service Employees International Union, Local 1000, Dissent Breyer, joined by Kagan
    F : Lane v. Franks, Lane v. Franks, unanimous
    F : Lozman v. City of Riviera Beach (2018), Majority Kennedy, joined by Roberts, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch
    F : Mahanoy Area School District v. B.L., Majority Breyer, joined by Roberts, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, Barrett
    F : Manhattan Community Access Corp. v. Halleck, Dissent Sotomayor, joined by Ginsburg, Breyer, Kagan (IMHO, the dissent was the pro-speech position)
    F : Matal v. Tam, Kagan in the majority
    A : McCullen v. Coakley, Majority Roberts, joined by Ginsburg, Breyer, Sotomayor, Kagan
    A : McCutcheon v. FEC, dissent, Breyer, joined by Ginsburg, Sotomayor, Kagan
    F : Minnesota Voters Alliance v. Mansky, Majority Roberts, joined by Kennedy, Thomas, Ginsburg, Alito, Kagan, Gorsuch
    A : National Institute of Family and Life Advocates v. Becerra, Dissent
    A : Nieves v. Bartlett, Majority Roberts, joined by Breyer, Alito, Kagan, Kavanaugh; Thomas (except Part II–D), to restrict 1A protections
    F : Reed v. Town of Gilbert, Concurrence Kagan (in judgment), joined by Ginsburg, Breyer
    F : Shurtleff v. City of Boston, Majority
    F : Snyder v. Phelps, Majority Roberts, joined by Scalia, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, Kagan
    F : Susan B. Anthony List v. Driehaus, unanimous
    F : United States v. Alvarez, Concurrence Breyer (in judgment), joined by Kagan
    A : Walker v. Texas Division, Sons of Confederate Veterans, Majority Breyer, joined by Thomas, Ginsburg, Sotomayor, Kagan to restrict speech
    A : Williams-Yulee v. Florida Bar, Kagan in the majority to restrict speech.

    F = for an expansive reading of the 1A on speech issues, A = against, NA, case not relevant or the 1A position is unclear.

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  3. Philip.R.M.Hunt

    Hey David and Sarah,

    Maybe Colorado lawyers in 303 Creative did not make a mistake with those stipulations, but thought it was in the best interests of the people of Colorado to get the constitutionality of the statute in question resolved as fast as possible?

    BTW: I have an autographed copy of Hunt for Red October signed by Clancy himself in the Pentagon (I was a Navy Ensign at the time).

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  4. Myron A Pugh

    I've been enjoying "Advisory Opinions" for a while now. My compliments to its creative team for the informative and entertaining content and format. I couldn't help but sign up for a Dispatch account after hearing Sarah apply the second movement of Beethovens 7th Symphony as a beauty standard in "Scotus on Student Loan Forgeveness: Nope."

    I look forward to enjoying the full Dispatch monty.

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  5. Bard Geesaman

    I asked a super lefty friend of mine who went to HLS around the same time as David French if he knew him. His response was: “Yes, he was in my LS class and even my section so I took every single class with him for my first year. He was a great guy and I suspect he remains one. From a political perspective, I found him too politically conservative and too religiously driven in his political thought. But, he is the exact opposite of an hypocrite. He believes in God and Country so he volunteered for the military. He finds Donald Trump morally repugnant and refuses to condone his craziness. He was and is a man of principal. I will start listening to his podcast. I hadn’t heard of it until now.”

    Thanks for staying with Advisory Opinions.

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    1. Avatar photocircle-angle-nib
      David French vertical-nib Author

      Oh wow. That's great to hear. And I'm glad he's going to start listening!

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    Witt Case

    303 wasn't surprising in it's result. I can agree with the merits and still feel it's entirely bigoted. It just feels off. I don't want to be one to compel speech or action, but let's not act like the withholding of this isn't just about religious expression or belief. If it was all forms of biblically condemned marriages and relationships would have been addressed. The focus is concerning. But needs to remain legal in our current paradigm. But we can have the conversation that this is necessary and not good. I'm not hearing that from the right, only celebrations.

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    1. MathewA

      I'm not sure why you don't think this is good. I think freedom of speech and freedom from coercion are good things in and of themselves.

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        Witt Case

        I agree with its results, but still look at the facts and circumstances of this case as driven by bigotry. That’s the cost of free speech at times and worth highlighting a little more directly. This will have consequences down the line.

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  7. Nicco

    I wish there would have been more discussion of Kagan’s dissent in the student loan case. Who do you think had the better argument on the precedents the majority cited? Does Kagan’s dissent on the merits hold any meaningful water. It seemed pretty lame to me, and I typically give Kagan good marks for at least making reasonable points. She (along with Sotamayor and Jackson) seems to have gone off the rails a bit at the end of the term.

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    Bill Dyer (aka Beldar)

    For its amusement value during the new-podcast episode hiatus, and further to my comment before the holiday regarding the Sixth Circuit opinion affirming (with minor modifications) the federal district court's sanctions against the Kraken lawyers — including that infamous pustule on the practice of law named Lin Wood: The hits just keep on comin'!

    Per an Associated Press report entitled "Attorney who challenged Trump’s 2020 loss gives up law license as states weigh disciplining him":

    ===begin quote===
    Attorney Lin Wood, who filed legal challenges seeking to overturn Donald Trump’s 2020 election loss, is relinquishing his law license, electing to retire from practicing rather than face possible disbarment. Multiple states have weighed disciplining him for pushing Trump’s false claims that he defeated Joe Biden.

    On Tuesday, Wood asked officials in his home state of Georgia to “retire” his law license in light of “disciplinary proceedings pending against me.” In the request, made in a letter and posted on his Telegram account, Wood acknowledges that he is “prohibited from practicing law in this State and in any other state or jurisdiction and that I may not reapply for admission.”

    Wood, a licensed attorney in Georgia since 1977, did not immediately respond to an email Wednesday seeking comment on the letter....
    ===end quote===
    Link: https://apnews.com/article/lin-wood-donald-trump-lawyer-e7a926bf24d3c846296c62448c2395f9

    I wonder if he's gotten a target letter from Jack Smith yet.

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    Alexander

    For the slack season, I would really like to see discussions of consequential historical cases and how the precedent played out. I'd love to see discussions of cases like Butler v Perry (narrow reading of the 13th Amendment), the Slaughter-House Cases (narrow reading of the 14th Amendment), J.W. Hampton v. United States (intelligible principle test), and Nebbia v. New York (rational basis test). It would be really interesting to know whether these were considered a radical break with the constitutional order at the time and what, if any, contemporaneous objections were lodged.

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    Paul Schmidt

    As a non-lawyer I don't have much to add on Supreme Court decisions, however, I need to defend goldfish. Goldfish do not have short memories as was mentioned at least twice this episode (although, without proof, I assume they don't care much for politics nor SCOTUS).

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