Chief Justice (Taney's) Roberts' Supreme Court

[David Lockmiller]

"The Curious Rise of a Supreme Court Doctrine That Threatens Biden’s Agenda"

New York Times by Adam Liptak
March 6, 2023

The NYTimes article begins as follows:

The “major questions doctrine,” promoted by conservative commentators, is of recent vintage but has enormous power and may doom student loan relief and other programs.

It has been only eight months since the Supreme Court first invoked the “major questions doctrine” by name in a majority opinion, using it to limit the Environmental Protection Agency’s power to address climate change. Last week, the court seemed poised to use it again, to kill the Biden administration’s plan to cancel more than $400 billion in student loans.

In dissent in the climate case, Justice Elena Kagan wrote that the majority had engaged in a sleight of hand. When ordinary legal principles fail to thwart disfavored programs, she wrote, “special canons like the ‘major questions doctrine’ magically appear.”

The idea behind the major questions doctrine is that Congress must speak particularly clearly when it authorizes the executive branch to take on matters of political or economic significance. But what makes that idea a doctrine?

A timely new study traces the rapid and curious rise of the major questions doctrine, spurred by conservative scholars and commentators and driven by hostility to administrative agencies.

“The phrase was used just once by any federal judge before 2017, and in only five federal decisions — at any level of court — before 2020,” Allison Orr Larsen, a law professor at William & Mary, wrote in the new study, “Becoming a Doctrine.”