Published On: Wed, Dec 28th, 2022

Conservative Supreme Court once again looms as threat to Biden agenda in 2023


WASHINGTON — The conservative-majority Supreme Court will have a major say over whether President Joe Biden is able to accomplish some of his most ambitious agenda items in 2023, with the justices already gearing up to cast judgment on his student loan forgiveness program and efforts to reshape immigration policy.

Midway through Biden’s four-year term, the court has already been a significant impediment to the administration, repeatedly stepping in to block policies on issues such as Covid-19 vaccines and immigration while also issuing major rulings that advance conservative causes, most notably the June decision to curtail abortion rights by overturning the landmark Roe v. Wade ruling.

In 2023, there is likely to be more of the same with the court, which has a 6-3 majority that is willing to aggressively move the law to the right, set to rule in a series of similarly headline-grabbing cases before its term concludes at the end of June.

The administration’s two biggest cases, on Biden’s student loan forgiveness program and his effort to wind down a Trump-era immigration policy called Title 42, will both be argued in February with rulings due by the end of June.

Based on oral arguments in October, the conservative justices also look set to end the consideration of race in college admissions and could further weaken the landmark Voting Rights Act, enacted in 1965 to protect minority voters. Both would be setbacks for the Biden administration.

The court will also rule in a case that pits LGBTQ rights against conservative Christians and in an elections dispute that could have a major impact on the 2024 presidential election. In a case being argued Feb. 21, the court will take up another divisive question: the scope of immunity that social media companies have over problematic content posted by users.

In another immigration-related case, the court has yet to rule on the Biden administration’s attempt to implement its immigration enforcement priorities.

For Solicitor General Elizabeth Prelogar, the administration’s top advocate at the court, arguing before such a conservative court is a constant uphill battle.

“Being the solicitor general for a Democratic president before this court, it’s a bit like being a liberal justice. You know you are going to be on the losing side the majority of the time,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles and MSNBC columnist.

A Harvard Law School graduate, Prelogar has served in the Biden Justice Department since the beginning of the administration and was confirmed by the Senate to her current role in October 2021. Earlier in her career, she clerked for two liberal justices: Elena Kagan and Ruth Bader Ginsburg.

A Justice Department spokesman declined to comment on Prelogar’s record so far.

No case is likely to be more important to the administration than the fight over Biden’s student loan forgiveness plan, with the court hearing oral arguments in two cases challenging the policy.

With Republicans set to control the House of Representatives following the midterm elections, the administration has even less wiggle room to enact its agenda than it did in the previous two years. As a result, the administration may rely more on executive actions seeking to enforce policies without explicit congressional authorization.

Challengers say the student loan forgiveness program, which has already been blocked by lower courts, is a glaring example of unlawful executive branch overreach.

The omens are not good for the administration based on how the conservative majority has handled other cases in which the government was accused of overstepping its authority. The court in January blocked Biden’s vaccine mandate for large employers for that very reason. In Aug. 2021, it also prevented the administration from extending an eviction moratorium during the pandemic.

Along similar lines, the administration’s hopes to tackle climate change via aggressive curbs on carbon emissions from power plants were dealt a significant setback in June when the court placed new limits on the federal government’s authority to issue sweeping regulations under the Clean Air Act.

The Title 42 case is slightly different, as it was then-President Donald Trump who implemented the plan to quickly expel asylum-seekers at the border as a result of the Covid-19 pandemic and the Biden administration that is moving to unwind it. The legal question is not about whether Trump had the power to implement the policy but whether Republican state attorneys general can intervene in the case to defend it.

It is not just in defense of its own policy decisions that the administration has faced an uphill battle. It has also been on the losing side in arguing as a friend of the court against dramatic changes in the law on culturally divisive social issues, including in the seismic abortion case decided in June.

The government similarly failed to convince the conservative majority not to expand gun rights in another major ruling issued that month. The administration’s arguments against expanding religious rights have also been unsuccessful in a series of cases that have lowered the barrier separating church and state.

The Biden administration can point to some hard-fought victories. At the same time the court blocked the vaccine mandate for private employers, it allowed the administration to enforce a separate mandate for health care facilities that receive federal funding. In June, the court backed the administration over its efforts to end Trump’s “remain in Mexico” immigration policy that required migrants to stay in Mexico while asylum claims are processed.

In both of those cases, the administration was able to win the votes of the three liberal justices and two of the six conservatives: Chief Justice John Roberts and Justice Brett Kavanaugh.

That appears to be the only path to victory in many cases, court-watchers note, with the court’s most conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — often out of reach.

Bearing in mind the ideological headwinds Prelogar faces on the bench, “she’s done a fabulous job as an advocate in oral argument, and the briefs I’ve seen have been solid advocacy and consistent with views of mainstream Democratic administrations,” said John Elwood, a lawyer who argues cases at the court.

“To the extent she’s getting a hard time in argument, it’s mainly because her client’s positions are at odds with the majority of the Supreme Court,” he added.



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