As the Supreme Court heard arguments this week over President Joe Biden s student loan debt relief plan, the justices asked about the definition of relevant statutory language and whether the plaintiffs had standing to sue, as well as constitutional questions around the separation of powers. These are all typical matters to discuss during judicial review. But the conservative justices also spent a good deal of time asking about a more nebulous subject: fairness.

The fairness issue arose during arguments in Department of Education v. Brown, a case in which two individual student borrowers challenged the Biden plan because they did not qualify for any or all of the relief offered.

Since were dealing in a case with individual borrowers or would-be borrowers, I think its appropriate to consider some of the fairness arguments, Chief Justice John Roberts said.

Roberts then presented a hypothetical scenario involving two high school graduates, neither of whom can afford college. One takes out a loan to go to college, while the other gets a loan to start a lawn care service. The one who goes to college, we know statistically, Roberts said, is going to do significantly financially better over the course of life than the person without.

And then along comes the government and tells that person, You dont have to pay your loan, he said. Nobody is telling that person who is trying to set up the lawn service business that he does not have to pay his loan.

For a court that often pretends to sit above the political fray, this is a line of argument that appears purely political in nature. The court is not judging whether policies are fair. Indeed, the chief justice acknowledged that his opinion on fairness doesnt matter.

You may have views on [the] fairness of that, and they dont count, Roberts said to Solicitor General Elizabeth Prelogar. I may have views on the fairness of that, and mine dont count.

So why, then, is the chief justice wondering about the fairness of the governments plan?

The answer is that Roberts was trying to shoehorn the political debate over fairness into what is known as the courts major questions doctrine .

We would like to usually leave situations of that sort, when youre talking about spending the governments money, which is the taxpayers money, to the people in charge of the money, which is Congress, Roberts said.

Why isnt that a factor that should enter into our consideration on our major questions where we look at things a little more strictly than we might otherwise when talking about statutory grants of authority to make sure that this is something that Congress wouldve contemplated?