Justice Kagan Challenges Sonia Sotomayor for Wildest Dissent of the Day

Erin Schaff/The New York Times via AP, Pool

The dissents that we’re seeing over the past couple of days from the liberal wing of the Supreme Court have certainly been something.

We saw how in the affirmative action case, the liberal wing had to twist themselves into a pretzel to get around the fact that they were arguing for the continuing of “race-based stereotypes” and discrimination while claiming they were arguing on behalf of racial justice.

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Then on Friday, the liberal justices had to turn themselves inside out and upside down when it came to the Christian website design case and the student loan decision.

As we reported in the Christian website case, Justice Sotomayor tried to reference the Matthew Shepard case to the matter, writing: “A social system of discrimination created an environment in which LGBT people were unsafe.” So by that logic, you could force someone to make a website for someone’s gay wedding if it was against the person’s religious belief? That was an odd argument. But even more, in the very case she cited to try to make her point, there were big questions about the facts she was presenting since subsequent investigation has indicated Shepard’s death likely was not because he was gay. She also erred when it came to the Pulse nightclub shooting, which was because the shooter was an Islamic extremist who was opposed to the U.S. actions in Syria.

That was bad enough. But then Justice Elena Kagan decided she wanted to give her colleagues a challenge for the wildest dissent with her take on the student loan case.

Now, the problem in the case was that Joe Biden didn’t have the power to wave a magic wand and simply forgive student debt. Even House Speaker Nancy Pelosi (D-CA) has admitted that. SCOTUS even noted the Pelosi statements in the majority opinion; that was a nice touch.

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But then — in August 2022, before the election — Joe Biden issued an executive order to do it, clearly hoping to influence the election, despite knowing he didn’t have the power and that it was likely going to be tossed by the Supreme Court. That’s exactly what the Court did on Friday. Biden tried to bootstrap power under the HEROES Act, which the Court rejected, stating that this went far beyond the limited modification in an emergency that the Act intended.

“The secretary’s plan has ‘modified’ the cited provisions only in the same sense that the French Revolution ‘modified’ the status of the French nobility – it has abolished them and supplanted them with a new regime entirely,” Roberts wrote, referring to U.S. Secretary of Education Miguel Cardona. [….]

“From a few narrowly delineated situations specified by Congress, the secretary has expanded forgiveness to nearly every borrower in the country,” Roberts said.

Exactly. Biden can’t create new powers by the stroke of a pen just because he knows he can’t get the same thing passed in Congress as the Constitution requires.

So what did Kagan do? Kagan came up with the wildest hypothetical situation to try to justify Biden’s unconstitutional move.

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The HEROES Act, as Congress designed it, would give him the identical power to address similar terrorist attacks in the future. So imagine the horrific. A terrorist organization sets off a dirty bomb in Chicago. Beyond causing deaths, the incident leads millions of residents (including many with student loans) to flee the city to escape the radiation. They must find new housing, probably new jobs. And still their student-loan bills are coming due every month. To prevent widespread loan delinquencies and defaults, the Secretary wants to discharge $10,000 for the class of affected borrowers. Is that legal? Of course it is; it is exactly what Congress provided for.

Talk about a wild excuse; that one certainly takes the cake. I’m not even sure she understands what she’s arguing there since that wasn’t the case, and it shows in even more stark relief how the situation with COVID doesn’t fit the extreme situation that she’s postulating. Plus, the COVID emergency was declared over, and it was effectively over for most people long before Joe Biden got around to declaring it so. Not to mention, unless Congress got taken out too in the emergency, there’s still no reason to move around Congress and act unconstitutionally.

But a lot of people had fun with Kagan’s “point.”

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At least the liberal wing is entertaining — why stick to the law when you can apply scary disaster themes?

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