In the new year, the Supreme Court will hear two challenges to the Biden Administration’s student debt relief plan, which would forgive up to $20,000 in debt to borrowers making less than $250,000. This could be life-changing for struggling graduates, and that’s likely why more than half of registered voters support it. So, what is standing in the way of the Biden administration’s popular debt relief plan? Conservative judges giving credence to faulty lawsuits.
The Biden administration’s pending Supreme Court appeals come from two different but equally disingenuous and problematic cases. In Texas, two borrowers who did not qualify for debt relief challenged the debt relief plan as procedurally improper with the support of a conservative activist organization. These plaintiffs stand to gain nothing from their lawsuit, but qualified borrowers struggling under the burden of debt have everything to lose.
Separately, the Eighth Circuit Court of Appeals issued an injunction against the relief plan at the request of six conservative-led states. The states claim that MOHELA, a major loan servicer headquartered in Missouri, would lose revenue due to the debt relief plan, thereby depriving the state of tax revenue. MOHELA, which is not a party to the case, is prepared to implement Biden’s debt relief plan and has publicly distanced itself from the lawsuit.
Both these cases rest on faulty grounds. In any federal lawsuit, the plaintiff must demonstrate that they suffered an injury the court can fix, but the plaintiffs in these cases haven’t adequately made that connection. The plaintiffs in Texas have nothing to gain from their lawsuit and the supposedly injured party in the Eighth Circuit has publicly stated it doesn’t even want to be involved. The relative success of these lawsuits is all due to the other factor they have in common: judges with extreme and partisan agendas.
Trump appointee Mark Pittman is the federal district court judge in Texas who held in favor of the unqualified borrowers and their partisan backer by declaring the debt relief plan unlawful. Notably, the transcript for the hearing reveals that Judge Pittman compared the Biden administration’s use of the HEROES Act to enact debt cancellation to the laws that allowed for Adolf Hitler’s rise to power in 1930s Germany. Like most federal judicial nominees prior to this administration, Judge Pittman worked in commercial litigation and then as a prosecutor before joining the bench. He is also a contributor to and founder of conservative judicial activist organizations, like the Federalist Society.
In the Eighth Circuit, it was three more Republican-appointed judges with conservative bona fides who blocked the Biden administration’s debt relief plan. Judge Bobby Shepherd, nominated by President George W. Bush, is a former private attorney and magistrate judge who was elevated to the Court of Appeals in 2006. Like Judge Pittman, he is listed as a contributor on the Federalist Society’s website.
Judge Ralph Erickson, a former private attorney, magistrate judge, and state judge, was nominated by President Trump in 2017. At the time, Alliance for Justice raised alarm bells about several key anti-LGBTQ+ and anti-environmental justice decisions he had previously issued. Notably, Judge Erickson was an active member of his state Republican Party between 1976 and 1994 — serving on numerous committees within the party’s executive structure.
The final member of the Eighth Circuit panel, Judge Leonard Steven Grasz, was also appointed by President Trump. He served as Deputy Attorney General of Nebraska and was general counsel to the Nebraska Republican Party. A very controversial nominee, he was rated “not qualified” to serve as a federal judge by the American Bar Association due to his inability to impart unbiased judgements. Like Judge Erickson, Judge Grasz’s nomination was strongly opposed by Alliance for Justice and other civil rights organizations who highlighted his position on the Nebraska Family Alliance’s Board, an anti-abortion rights organization, and his proposal of an Amendment to the Omaha City Charter that would allow employers to discriminate against LGBTQ+ people when hiring.
As exemplified by these judges, in recent years, the trajectory of the judiciary has taken an alarming turn. The Trump administration broke records with the number of unqualified conservative activists that they elevated to the bench, dragging our courts further into partisan upheaval. The judges blocking student debt relief are just a handful of an entire class of federal jurists who were chosen for the bench precisely because of their conservative records and affiliations instead of records of fairness and impartiality. Their lifetime appointments are all but a guarantee that conservative activists and extremists looking for a judge to legitimize their bogus lawsuits will find friends on the federal court. After all, the most well-intentioned legislation or policy is only as strong as a federal judge’s adherence to the rule of law.
Fortunately, in the past two years the Biden administration nominated and the Senate confirmed 97 superbly qualified judges from a wide array of demographic and professional backgrounds who are committed to the rule of law. Judges like those blocking student debt relief are clear examples of why the historic progress of the current administration is so critically important — and, ironically, these judges also underscore the tangible impact debt relief can have on society.
Debt relief would help make the legal field more demographically and professionally diverse, leading to better qualified judges from all corners of the legal profession. About 71% of recent law graduates reported leaving law school with an average of $130,000 in student debt. Studies show that this level of debt forces graduates into pursuing higher paying law jobs rather than working for the public interest — jobs that often pay far less than $250,000 and would thus qualify for the administration’s relief.
Notably, students of color and women are more likely to leave school with debt. For example, Black law school graduates’ debt is 97% higher than that of white law school graduates. This startling statistic may help explain why only 5% of practicing attorneys are Black. Even modest debt forgiveness could allow attorneys, particularly attorneys of color and women attorneys, more freedom to choose where and how they practice law based on their interest in justice, not on their financial burdens.
The good news is that the fight for student debt relief Isn’t over. The bad news? It is heading to the Supreme Court, which is also packed with ultra-conservative Trump appointees. Unfortunately, the partisan and often downright-unqualified judges determining this case — and many more nominated by prior administrations — have lifetime appointments. However, by filling the more than 100 judicial vacancies open right now with highly qualified professionally and demographically diverse jurists, we can water down their impact and begin to shift our judiciary to one led by the established rule of law, not ideological whims.
Time will tell how the highest court rules on student debt relief, but in the meantime, one lesson is clear from these cases: We are in urgent need of a judiciary with experienced, impartial judges who prioritize the law and equity for all.
Mari Nemec is a Dorot Fellow at Alliance for Justice.