{"id":9027,"date":"2021-02-01T22:07:51","date_gmt":"2021-02-02T05:07:51","guid":{"rendered":"https:\/\/sanjhisoch.com\/english\/?p=9027"},"modified":"2021-02-01T22:07:51","modified_gmt":"2021-02-02T05:07:51","slug":"supreme-court-test-for-biden-how-boldly-to-disavow-trumps-agenda","status":"publish","type":"post","link":"https:\/\/sanjhisoch.com\/english\/supreme-court-test-for-biden-how-boldly-to-disavow-trumps-agenda\/","title":{"rendered":"Supreme Court Test for Biden: How Boldly to Disavow Trump\u2019s Agenda"},"content":{"rendered":"
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.<\/strong><\/h6>\n

Sanjhi Soch Beauro \u2013<\/strong>Chief Justice John Roberts was annoyed.<\/p>\n

\u201cThe position that the United States is advancing today is different from the position that the United States previously advanced,\u201d he told a lawyer in the solicitor general\u2019s office, the elite unit of the Justice Department that represents the federal government in the Supreme Court.<\/p>\n

The Obama administration had filed a brief disavowing a position taken by its predecessor, saying it was the product of \u201cfurther reflection.\u201d<\/p>\n

\u201cThat is not the reason,\u201d Roberts said. \u201cIt wasn\u2019t further reflection.\u201d The new position, he said, was prompted by a change in administrations.<\/p>\n

The rebuke was in 2012, but its memory lingers in the solicitor general\u2019s 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.<\/p>\n

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.<\/p>\n

Justice Elena Kagan, who was former President Barack Obama\u2019s first solicitor general before joining the court, has said, for instance, that \u201ca change in position is a really big deal that people should hesitate a long time over.\u201d<\/p>\n

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.<\/p>\n

\u201cThe 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,\u201d Dreeben, who is now a lawyer with O\u2019Melveny & Myers, said in an interview. \u201cThe 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.\u201d<\/p>\n

The article, published in The Yale Law Journal last month, contrasted the Obama administration\u2019s rare reversals to the Trump administration\u2019s frequent and stark ones.<\/p>\n

\u201cThe Obama administration swept into office following eight years of Republican rule, and ample areas existed for revision and change,\u201d Dreeben wrote. \u201cBut President Obama\u2019s solicitors general took a highly restrained approach to reversing the positions of their Bush predecessors. During President Obama\u2019s first term in office, no cases featured overt reversals of positions taken in the Supreme Court.\u201d<\/p>\n

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\u2019 rights and voting rolls.<\/p>\n

\u201cThe reversals were abrupt and appeared strikingly at odds with institutional norms,\u201d 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.<\/p>\n

\u201cWhy so little comment compared to the Obama-era changes?\u201d Dreeben asked. \u201cPerhaps the muted response reflected the court\u2019s acceptance that \u2018of course\u2019 a new administration will take new views.\u201d<\/p>\n

\u201cOr perhaps,\u201d he wrote, referring to the solicitor general\u2019s office by its initials, \u201csome justices simply agreed with OSG\u2019s new positions, while others wanted to engage with those positions on the merits rather than shadowbox with OSG. But a third possibility exists: OSG\u2019s change of position on its interpretation of the law, if explained candidly, is simply not worthy of comment to the court.\u201d<\/p>\n

The most pressing question for the Biden administration for now is whether it should change the government\u2019s 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\u2019s support for the law.<\/p>\n

In a recent public conversation webcast by Georgetown University\u2019s 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.<\/p>\n

The lawyer on the receiving end of Roberts\u2019 rebuke in 2012, Joseph Palmore, now a lawyer with Morrison & Foerster, remembers it vividly.<\/p>\n

\u201cWe had included a footnote \u2014 Footnote 9 in the brief \u2014 noting a change of position, and we used a phrase that had been commonly used by the office until then, which was \u2018upon further reflection,\u2019\u201d he said. \u201cMy understanding is that after my experience, the office no longer uses that formulation of words when changing a position.\u201d<\/p>\n

\u201cI was the unlucky lawyer who happened to be at the podium when the chief said what he said,\u201d he added. \u201cI think the message was meant more for the solicitor general, not for me.\u201d<\/p>\n

The message was received. When the Trump administration announced new pos<\/p>\n

itions in Supreme Court briefs, it was blunt. \u201cAfter the change in administration,\u201d a typical brief said, \u201cthe office reconsidered the issue and has reached the opposite conclusion.\u201d<\/p>\n

The administration prevailed in that case, on workers\u2019 rights, as it did in the three others discussed in Dreeben\u2019s article.<\/p>\n

The chief justice, who once served in the solicitor general\u2019s office, might have been making a limited point in 2012, about candor. Indeed, he might have been remembering a joke inside the office: that \u201cupon further reflection\u201d actually means \u201cupon further election.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

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. Sanjhi Soch Beauro \u2013Chief Justice John Roberts was annoyed. \u201cThe position that the United States is advancing today is different from the position that the United States previously advanced,\u201d […]<\/p>\n","protected":false},"author":2,"featured_media":9029,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[],"yoast_head":"\n\n\n\n\n\n\n\n\n\n\n\n\t\n\t\n\n\n\n\n\t\n