On December 1, 2022, the U.S. Supreme Court addressed an application by the Biden Administration to vacate an injunction entered by the Eighth Circuit Court of Appeals that currently prevents the administration from enacting its plan to forgive approximately $400 billion in federal student loans.  Justice Kavanagh—the designated Justice for certain emergency appeals from the Eighth Circuit—referred the Administration’s application to the full Court, which, on its own initiative, converted the application to a petition for writ of certiorari before judgment and granted the petition.  The Court specifically directed the court clerk to establish a briefing schedule that would permit argument in February 2023.

The Court’s order resolves concerns that the legal fate of the Biden Administration’s initiative would remain undecided until 2024.  Instead, it is now likely that the Court, after hearing argument in February, will issue an opinion addressing the key question of plaintiffs’ standing—and potentially the substantive question of whether the Biden Administration has statutory authority to move forward with loan forgiveness—in early July 2023.  Whether the Biden Administration’s recent decision to extend the ongoing freeze on federal student loan payments influenced the Court’s decision-making is unclear.

A further procedural question is whether the Biden Administration will seek, and whether the Court will grant, a similar application in connection with the ongoing appeal to the Fifth Circuit of a district court decision that stands as a separate bar to the loan-forgiveness program.  The Fifth Circuit recently denied the Administration’s request for a stay of the district court’s ruling, but did agree to hear the challenge on an expedited basis.  Because that suit was brought by different plaintiffs claiming standing on different grounds, the Court may or may not have an interest in consolidating these cases for argument and decision.

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