Chief Justice John Roberts was annoyed.
“The position that the United States is advancing today is different from the position that the United States previously advanced,” he told a lawyer in the solicitor general’s office, the elite unit of the Justice Department that represents the federal government in the Supreme Court.
The Obama administration had filed a brief disavowing a position taken by its predecessor, saying it was the product of “further reflection.”
“That is not the reason,” Roberts said. “It wasn’t further reflection.” The new position, he said, was prompted by a change in administrations.
The rebuke was in 2012, but its memory lingers in the solicitor general’s office, where the Biden administration will soon have to decide whether to disavow positions taken by its predecessor in major cases, including ones on health care and voting.
In an office that prizes its reputation for credibility, consistency and independence, solicitors general of both parties have said they are wary of veering from positions staked out by their predecessors.
Justice Elena Kagan, who was former President Barack Obama’s first solicitor general before joining the court, has said, for instance, that “a change in position is a really big deal that people should hesitate a long time over.”
But a new law review article presents a dissenting view, concluding that the Biden administration need not fear announcing bold reversals of stances taken by the Trump administration. It was written by Michael R. Dreeben, who worked in the office for more than 30 years, most of them as the deputy solicitor general responsible for criminal matters, arguing 105 cases in the Supreme Court. He also served on the staff of Robert Mueller, the special counsel who investigated Russian interference in the 2016 election.
“The new administration should be not reluctant to give the court better views of what it thinks the law is because of undue concern about positional consistency,” Dreeben, who is now a lawyer with O’Melveny & Myers, said in an interview. “The court will understand that new administrations have new views, particularly coming on the heels of the Trump administration, which in many ways pressed a radical vision of its jurisprudential agenda on the court that a successor administration is entitled to push back on.”
The article, published in The Yale Law Journal last month, contrasted the Obama administration’s rare reversals to the Trump administration’s frequent and stark ones.
“The Obama administration swept into office following eight years of Republican rule, and ample areas existed for revision and change,” Dreeben wrote. “But President Obama’s solicitors general took a highly restrained approach to reversing the positions of their Bush predecessors. During President Obama’s first term in office, no cases featured overt reversals of positions taken in the Supreme Court.”
The Trump administration took a different approach, Dreeben found. It flipped positions in four major cases in a single year in its first full Supreme Court term, including ones on workers’ rights and voting rolls.
“The reversals were abrupt and appeared strikingly at odds with institutional norms,” he wrote. But they were presented candidly as a product of a change in administrations and, with one exception, were not the subject of discussion when the cases were argued.
“Why so little comment compared to the Obama-era changes?” Dreeben asked. “Perhaps the muted response reflected the court’s acceptance that ‘of course’ a new administration will take new views.”
“Or perhaps,” he wrote, referring to the solicitor general’s office by its initials, “some justices simply agreed with OSG’s new positions, while others wanted to engage with those positions on the merits rather than shadowbox with OSG. But a third possibility exists: OSG’s change of position on its interpretation of the law, if explained candidly, is simply not worthy of comment to the court.”
The most pressing question for the Biden administration for now is whether it should change the government’s position in the latest challenge to the Affordable Care Act. In a brief filed last year, the Trump administration told the justices that a revision to one provision of the law meant that the entire statute must fall. That is, of course, at odds with President Joe Biden’s support for the law.
In a recent public conversation webcast by Georgetown University’s law school, Paul Clement, who was the solicitor general in the George W. Bush administration, and Neal Katyal, who was the acting solicitor general in the Obama administration, agreed that the case, which was argued in November, was a promising candidate for a change in positions.
The lawyer on the receiving end of Roberts’ rebuke in 2012, Joseph Palmore, now a lawyer with Morrison & Foerster, remembers it vividly.
“We had included a footnote — Footnote 9 in the brief — noting a change of position, and we used a phrase that had been commonly used by the office until then, which was ‘upon further reflection,’” he said. “My understanding is that after my experience, the office no longer uses that formulation of words when changing a position.”
“I was the unlucky lawyer who happened to be at the podium when the chief said what he said,” he added. “I think the message was meant more for the solicitor general, not for me.”
The message was received. When the Trump administration announced new positions in Supreme Court briefs, it was blunt. “After the change in administration,” a typical brief said, “the office reconsidered the issue and has reached the opposite conclusion.”
The administration prevailed in that case, on workers’ rights, as it did in the three others discussed in Dreeben’s article.
The chief justice, who once served in the solicitor general’s office, might have been making a limited point in 2012, about candor. Indeed, he might have been remembering a joke inside the office: that “upon further reflection” actually means “upon further election.”
Adam Liptak c.2021 The New York Times Company