Barrett’s concurring opinion in the student loan case is essentially an olive branch to the left on the much-reviled “major questions” doctrine. She acknowledges that a plausible understanding of it presents serious problems for jurists who claim to be textualists, but argues that, in practice, it means nothing more than the need to provide “context” for challenged provisions of administrative law. Should we take her seriously?
Yes and no. Yes, it is possible that her concurring opinion is an accurate description of her method of interpreting statutory provisions. If so, the problem–at least as to her–largely goes away, since nobody in the field objects to considering “context.” No, because she isn’t speaking for the rest of the majority, and her description of the doctrine is completely at odds with the case law, including the student loan case. Were that not the case, the doctrine would not require a name, and if it did have one, it certainly wouldn’t be “major questions.”
Is this perhaps a warning to her conservative colleagues that she may jump ship if they push “major questions” too far? We’ll see.