Upholding her reputation as the dumbest SCOTUS judge.
That’s why she’s the worst justice. She decides who “should” win, who is most “deserving”, instead of what the law says.

There Is No ‘Expert’ Clause in the U.S. Constitution

CNN’s Joan Biskupic writes up yesterday’s oral arguments from the two student loan cases that are currently before the Supreme Court:

Prelogar’s arguments were bolstered by the three liberals among the nine. Sonia Sotomayor, the senior justice on the left, warned that judges would seize greater power if agency authority to carry out acts of Congress were diminished.

Addressing Nebraska state Solicitor General James Campbell, who argued against the Biden administration, Sotomayor said, “What you’re saying is now we’re going to give judges the right to decide how much aid to give them. Instead of the person with the expertise and the experience, the secretary of education, who’s been dealing with educational issues and the problems surrounding student loans, we’re going to take it upon ourselves, instead of leaving that decision in the hands of the person who has experience with these questions.”

This is a nonsense argument from Sotomayor. First off, the question before the Court is not “how much aid” to give to students. The question before the Court is whether the statute it is examining — the 2003 HEROES Act — confers upon the executive branch the power to do what it’s trying to do. If it does, it does. If it doesn’t, it doesn’t. The amount of aid doesn’t enter into that calculation. Neither does the level of “expertise and experience” exhibited by the incumbent Secretary of Education. That Secretary could have the most sparkling mind in American history, or he could be a total moron, and, in both cases, the issue before the Court would be same: “Does he have the power to do it?” There is no provision within the United States Constitution that accords unlimited power to bureaucrats simply because some people consider them to be well-credentialed.

As for Sotomayor’s suggestion that, by superintending this statutory matter, the Court is taking it upon itself to set policy, “instead of leaving that decision in the hands of the person who has experience with these questions,” that too is absolute rot. As Biskupic notes, Elena Kagan made this argument in last year’s EPA case . . .

“The Court appoints itself – instead of Congress or the expert agency – the decisionmaker on climate policy,” Kagan wrote in a dissenting opinion. “I cannot think of many things more frightening.”

. . . and that was a bunch of old tosh as well. In that controversy, as in this one, the Court was not appointing itself as “the decisionmaker”; it was deciding where the decisionmaking power lies. Was it in Congress, which, the plaintiffs claimed, had not yet legislated on the issue? Or was it in a federal agency that had been empowered by Congress to execute congressional legislation? In that case, the Court determined that it was in Congress, because Congress had not granted the EPA the powers that it was claiming. In so doing, it did not take the power for itself; it handed it back to Congress.

In essence, Kagan’s argument is completely backwards. In statutory cases such as these, the risk is not that the Supreme Court will claim a role for which it is not suited, but that, absent the court’s deliberation, the executive branch will claim powers that rightfully belong to Congress.

If, as Kagan seems (selectively) to want, the Supreme Court were to habitually abandon the playing field whenever it was presented with statutory questions, then the role of deciding which powers the executive branch has been delegated would henceforth be performed by the executive branch — which, having been given carte blanche to interpret the laws however it likes, would start doing whatever it wished to do without reference to the law as written.

It would, no doubt, be nice if we were in the habit of electing presidents who were faithful to their oaths of office. But we are not in that habit. Instead, we keep electing presidents who scour the law books for sentences that might, if you squint, seem to connect vaguely with whatever they want to do that week, and who then insist dishonestly that they are empowered to act without further legislation.

By intervening in such cases, the Supreme Court is not undermining the “experts”; it is playing its role as the arbiter of the meaning of the law — a role that it is self-evidently better placed to fulfill than is the non-lawyer and non-judge who heads up Joe Biden’s Department of Education.

One suspects this might be more obvious to Kagan and Sotomayor in different circumstances. Were the Secretary of the Treasury in the next Republican administration to claim in bad faith that he had the power to stop collecting all income taxes for a year, one would likely not hear much talk about the brilliance of the bureaucracy from Elena Kagan, and nor would we hear Sonia Sotomayor wondering aloud during oral arguments, whether she ought to leave the matter to “the person with the expertise and the experience, the secretary of the treasury, who’s been dealing with fiscal issues and the problems surrounding high taxes” — even if, as a matter of indisputable fact, the secretary in question were the most experienced expert in the land. Instead, Sotomayor and Kagan would grasp that the policy matter and the legal matter were separate, and that the scope of the question before the Court was clear: “Does that law allow for this?”

That’s the question at hand here, too.