WASHINGTON – The Supreme Court’s conservative majority sent a clear signal this week that President Joe Biden’s student loan forgiveness plan is in peril. But even as they agree with the prediction, some observers are putting an asterisk on it.

Two asterisks, to be precise: One next to Associate Justice Amy Coney Barrett and the other alongside Associate Justice Brett Kavanaugh.

During three-and-a-half hours of oral argument Tuesday in the two student loan cases, both Trump appointees lobbed tough questions at Biden’s attorney. But they also posed unexpected questions more favorable to the administration – and that makes both jurists worth watching when the court hands down its decision later this year.

When is the Supreme Court decision date on student loan forgiveness?

• The Supreme Court is weighing two challenges to Biden’s $400 billion student loan forgiveness plan, which would wipe away up to $20,000 in debt for some.
• Following the oral arguments, the justices will cast tentative votes in private and the most senior justice in the majority and minority will assign opinions for their side. Drafts of those opinions circulate among the justices, a process that usually takes more than three months. In this case, a decision is expected before July.
• Barrett posed a number of questions suggesting she could side with the court’s three-member liberal wing on standing, that is whether the plaintiffs were actually injured by the plan. Kavanaugh at one point questioned why one word in the law – “waive” – didn’t give the administration the power to forgive students loans.

Why Amy Coney Barrett’s questions about standing could matter

Six conservative states that challenged the Biden plan argued, in part, that a state-created entity known as MOHELA that services student loans would lose revenue if the debt was forgiven. MOHELA, a quasi-state agency in Missouri, directs some of its money back to the state. Missouri sued in part based on the potential loss of revenue.

There’s just one problem with the states’ argument: MOHELA itself didn’t sue.

“If MOHELA is really an arm of the state…all of this would be a lot easier,” Barrett said. “If MOHELA is an arm of the state, why didn’t you just strong arm MOHELA and say ‘you’ve got to pursue this suit’?”

The question is key because if the court rules the states and borrowers were not harmed by the policy, it would hand Biden a narrow win. Barrett sided with Biden in two earlier emergency cases challenging the student loan plan – presumably on similar questions about standing.

“Barrett, along with the three liberal justices, seemed deeply skeptical that any of the parties have standing,” said Adam Minsky, an attorney, author and expert on student debt. “I do think there is a possibility the Biden administration could prevail if there are five justices who agree…that the challengers don’t have standing.”

Declined:Barrett denies second challenge to Biden student loan forgiveness program

But given the court’s 6-3 conservative composition, even if Barrett decided to join with the court’s liberals on standing they would need one more vote for a majority. Based on the arguments Tuesday, it’s not clear where that fifth vote would come from.

“I would not be surprised if she voted to find that no one has standing in either case,” said Thomas Berry, editor‐​in‐​chief of the Cato Supreme Court Review. “The key question is whether there is a potential fifth vote to find that no party has standing.”

Why court observers are talking about Brett Kavanaugh’s question

Kavanaugh, at one point, asserted that “some of the finest moments in the court’s history were pushing back against presidential assertions of emergency power.” Some of its “biggest mistakes,” he then added, were when it didn’t.

But Kavanaugh also returned to the language of the law, which allows the Department of Education to “waive or modify” loan provisions after an emergency, like the COVID-19 pandemic. Why, Kavanaugh asked the states’ lawyer, didn’t “waive” authorize Biden’s plan?

“That is an extremely broad word. In 2003, Congress was very aware of potential  emergency actions in the wake of September 11th and war, possible terrorist attacks, and yet it put that extremely broad word, ‘waive,’ into the statute,”  he said.

But just like Barrett on standing to sue, even if Kavanaugh sided with the court’s liberals on the issue of Biden’s authority to implement the plan – a big “if,” given some of his other questions – one more vote would still be needed for a majority.

“As Kavanaugh noted more than once, Congress used an ‘extremely broad word’ when it gave the education secretary the authority to ‘waive’  provisions related to student debt,” said Smita Ghosh, appellate counsel Constitutional Accountability Center. “He asked…why the court should ‘not just read that as written.’ That is exactly what the government is asking the court to do.”