Trump’s le­gal u-turns may test top court’s pa­tience

Miami Herald - - FRONT PAGE -

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?”

Ver­rilli re­sponded, “Well, be­cause we think they are per­sua­sive.”

That did not sat­isfy Chief Jus­tice John Roberts. “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, 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,” 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.”

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