Biden v. Nebraska, which struck down President Biden’s effort to cancel student loans under the HEROES Act, bears hallmarks of longstanding tendencies of Chief Justice Roberts’ jurisprudence as well as developments since Justices Gorsuch, Kavanaugh, and Barrett joined the Court. Consistent with these approaches, the majority drew a formalistic line between permissible and impermissible modifications of student financial assistance and Justice Barrett also defended a form of common law judging under the guise of textualism.

The HEROES Act permits the Secretary of Education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs applicable under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency” (Roberts opinion, 13). The statute was passed in 2002, in the wake of the attacks on the World Trade Center of September 11, 2001.

In the context of that national emergency, Congress delegated substantial power to the executive branch, not solely with respect to loan forgiveness, but perhaps even more strikingly with regard to military activity abroad. The Authorization for Use of Military Force (“AUMF”), passed just days after September 11, granted extremely broad capacity for the President to employ military strength against nations, organizations, or persons he deemed involved in the terrorist attacks. The AUMF continued to permit executive action well after the immediate circumstances had faded into the background and President Obama invoked this provision in support of his decision to mount a military assault on the Islamic State of Iraq and Syria (“ISIS”) in 2016. Placing the AUMF and the HEROES Act side-by-side and considering the executive actions undertaken to implement the AUMF argues for a broad reading of the Secretary’s power to “waive or modify” under the HEROES Act in light of emergency situations.

Yet Chief Justice Roberts’ opinion for the majority rejected this kind of expansive reading and instead displays a type of formalism that has characterized a number of his decisions. In Biden v. Nebraska, Roberts insisted that the Secretary’s cancellation of student loans was not a modification of a statutory or regulatory provision but instead “created a novel and fundamentally different loan forgiveness program” (14), elaborating that “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” (14-15). Roberts also relied on the lack of precedent for similar administrative action under the HEROES Act, asserting that “The Secretary has never previously claimed powers of this magnitude under the HEROES Act” (20). These arguments are reminiscent of those he has made in other cases, including the 2012 decision in which he furnished the deciding vote on the constitutionality of the individual mandate provision of the Affordable Care Act. In that instance, NFIB v. Sebelius, Roberts opined that the expansion of Medicaid to cover a broader group of low-income individuals constituted a new program rather than a modification of an existing one and therefore could not bind the states. There he also relied on the lack of legislative precedent for something like an individual mandate to deem such a measure presumptively invalid. In these respects, the decision in Biden v. Nebraska recalls longstanding aspects of the Roberts Court’s jurisprudence.

In its expansion of the so-called “major questions doctrine,” which has recently restricted agencies from implementing measures of broad economic and political significance without clear congressional authorization, Biden v. Nebraska also draws on the approach of the Courts’ newer members. Justice Barrett penned a lengthy concurrence elaborating on the textualist credentials of major questions doctrine. In doing so, she defended the doctrine against Justice Kagan’s claim in dissent that it represents “a way for the Court to negate broad delegations Congress has approved” and to “substitute[] itself for Congress and the Executive Branch” (14).

Yet Barrett’s textualist defense of the major questions doctrine bears less resemblance to the form of textualism defended by the late Justice Scalia, who inspired much of the textualist revival, than to a newer version. In his classic essay, “Common Law Courts in a Civil Law System,” Scalia critiqued the common law training of law students, including the effort to educate them in line-drawing between hypotheticals and in distinguishing cases, contending that this kind of ad hoc reasoning was misplaced in a system governed by a written Constitution and statutes.

It is precisely the kind of judicial reasoning Scalia critiqued, however, that Barrett defends in her concurrence. Hence she writes that “the major questions doctrine grows out of . . . commonsense principles of communication” (8) and that “[t]he doctrine serves as an interpretive tool reflecting ‘common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency” (5). Common sense—informed by precedent and what 17^th-century jurist Sir Edward Coke called the “artificial reason” and accumulated wisdom of judges—has generally been the province of common law judging.

The same critique could be mounted with regard to Barrett’s appeal to common sense as Scalia did with regard to common law judging—whose common sense matters and is it actually the people’s or that of unelected judges? Barrett’s reasoning here also recalls Justice Kavanaugh’s in his explication of his own textualism in “Fixing Statutory Interpretation.” There he advocated for judges discerning the “best reading” of a statute. Again, the question arises as to who believes the reading is best and whether that assessment can be generalized beyond a particular judge or set of judges.

Bernadette Meyler, JD ’03, the Carl and Sheila Spaeth Professor of Law, is a scholar of British and American constitutional law and of law and the humanities. Her research and teaching bring together the sometimes surprisingly divided fields of legal history and law and literature, while also examining the long history of constitutionalism, reaching back into the English common law ancestry of the U.S. Constitution. She is the author most recently of Theaters of Pardoning (Cornell UP, 2019). She is also professor, by courtesy, of English and the Associate Dean for Research and Intellectual Life.