Justice Amy Coney Barret uses the term "common sense" at least six times in her concurrence in the Supreme Court 's recent decision in Biden v. Nebraska. And that phrase is a good characterization of the court in its current iteration. Under the leadership of Chief Justice John Roberts, the court appears committed to applying fundamental common sense when making important rulings as in three major recent decisions.
First, common sense suggests that President Joe Biden doesn’t have the power to unilaterally forgive $450 billion of student loan debt without at least some authority from Congress . Second, common sense suggests that a state like Colorado cannot enforce a law compelling an individual to write website copy that she disagrees with. And third, common sense suggests that our colleges and universities cannot discriminate based on race.
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Efforts to characterize the court as radically partisan or ultra-conservative fail when reasonable people, applying common sense, take the time to read and consider recent major opinions that have faced extensive criticism from the Left.
The court’s decision in 303 Creative v. Elenis protects the individual from efforts by the states to compel speech. A website creator who produces original copy should not be forced to write content she fundamentally disagrees with. States cannot pass laws punishing African American writers who refuse to author books or essays celebrating racism. Jewish writers cannot be punished if they refuse to produce essays celebrating antisemitism. Similarly, Colorado cannot pass a law forcing a Christian to write narratives on marriages she doesn’t believe in.
In the cases involving affirmative action, Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC, the court ruled that colleges and universities cannot use race as the determinative factor when admitting or rejecting applicants. The 14th Amendment and the Civil Rights Act protect us from such actions.
Finally, in Biden v. Nebraska, the court concluded that a President shouldn’t be allowed to wipe away over $450 billion in student debt with a wave of his pen. At one point, Biden — in a rare moment applying common sense — conceded this point, stating that he needed Congress to act to forgive student loans. The public shouldn’t be expected to shoulder this enormous financial burden without their elected representatives in Congress speaking. Until Congress passes a new law authorizing student debt forgiveness, individuals who voluntarily decided to accept loans will be expected to pay back (just like everyone else who takes out a loan).
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Common sense should never be cast aside when deciding cases as important as the ones decided last week. And it won in the Supreme Court. Let’s hope this trend continues.
Michael J. O’Neill is Assistant General Counsel at Landmark Legal Foundation
