The Trump administration may be headed for trouble in the Supreme Court. It has twice switched sides in important Supreme Court cases, on workers’ rights and voting rolls, abandoning the positions of the previous administration for ones favored by conservatives.
Such legal U-turns can try the justices’ patience. In the Obama years, some of the testiest exchanges at oral arguments involved changes in legal positions that seemed prompted by politics. Mr. Trump’s lawyers may now also have some explaining to do.
The decisions to change course cannot have been made lightly, as lawyers in the solicitor general’s office, the elite unit of the Justice Department that represents the federal government in the Supreme Court, know that switching sides comes at a cost to the office’s prized reputation for continuity, credibility and independence.
Both cases involved the interpretation of federal statutes. The Obama administration read them to mean one thing. The Trump administration said they meant the opposite.
In two Supreme Court arguments in the Obama years, justices lashed out at lawyers from the solicitor general’s office for similar shifts.
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In one of them, Solicitor General Donald B. Verrilli Jr. acknowledged in 2012 that the government’s position had changed on the question of whether American courts may hear some cases concerning human rights abuses in foreign countries.
Justice Antonin Scalia was not pleased. “Why should we listen to you rather than the solicitors general who took the opposite position?” he asked. “Why should we defer to the views of the current administration?”
Mr. Verrilli responded, “Well, because we think they are persuasive.”
That did not satisfy Chief Justice John G. Roberts Jr. “Your successors may adopt a different view,” he said, adding, “Whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”
A few months later, at an argument in a case about when health plans must be paid back from injury awards, Chief Justice Roberts noted that “the position that the United States is advancing today is different from the position that the United States previously advanced.”
The chief justice chastised a government lawyer for saying in a brief that the secretary of labor had changed a legal position “upon further reflection.”
“That is not the reason,” Chief Justice Roberts said. “It wasn’t further reflection. We have a new secretary now under a new administration.”
“We are seeing a lot of that lately,” he added, calling the government’s advocacy “a little disingenuous.”
Lawyers in the current solicitor general’s office are doubtless aware of the chief justice’s comments, and the passages in their briefs announcing their revised positions were admirably candid and blunt. They came close to acknowledging, as the joke inside the office goes, “upon further reflection” actually means “upon further election.”
In a brief filed in June in the case on workers’ rights, Acting Solicitor General Jeffrey B. Wall put it this way: “After the change in administration, the office reconsidered the issue and has reached the opposite conclusion.” The administration, he said, now favored enforcing provisions in arbitration agreements that barred employees from banding together to take legal action over workplace issues.
Last September, two months before the presidential election, the solicitor general’s office, representing the National Labor Relations Board, had taken the opposite position.
Seven of the board’s lawyers had signed that brief. But they went missing when the solicitor general’s office reversed course in June. The board instead issued a news release saying that “the acting solicitor general of the United States authorized the National Labor Relations Board to represent itself in the Supreme Court.”
Earlier this month, the board filed its own brief, sticking to its original position.
In the second case, involving voting, Mr. Wall again explained this month that the Justice Department had switched sides. “After this court’s grant of review and the change in administrations,” he wrote, “the department reconsidered the question.”
The issue in the case was whether officials in Ohio had been too aggressive in culling the state’s voter rolls.
Before the appeals court, the Obama administration had argued that the state had gone further than a federal law allowed. A divided three-judge panel of the court agreed. After the election, the new administration told the Supreme Court that the relevant laws allowed Ohio to purge its voter rolls.
In a new law review article, Josh Blackman, a professor at South Texas College of Law, considered earlier changes in the government’s legal positions, finding them “increasingly problematic.”
On the one hand, he wrote, elections have consequences.
“There is nothing nefarious when a new administration disagrees with a previous administration,” he wrote. “Indeed, it is quite natural that presidents see things differently. The only question that remains is how should courts treat this reversal.”
If two administrations manage to read the same federal statutes in opposite ways, he wrote, something may be amiss.
“Where an incoming administration reverses a previous administration’s interpretation of statute simply because a new sheriff is in town,” he wrote, “courts should verify if the statute bears such a fluid construction.”
As carried in nytimes on 5.9.2017