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