When the Solicitor General Changes His Position “Upon Further Reflection”
Yesterday, Adam Liptak wrote about how the Biden Administration may reverse positions taken by the Trump Administration:
Chief Justice John G. Roberts Jr. 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,” Chief Justice 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.
Adam wrote a very similar column for years ago, about how the Trump administration may reverse positions of the Obama administration. He cited my then-draft article, titled Presidential Maladministration.
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.”
In that article, I tracked many of the instances where the Solicitor General has changed position “upon further reflection.” Here is an excerpt that discusses reversals in three cases: Kiobel v. Royal Dutch Petroleum, Levin v. United States, and US Airways v. McCutchen:
I was not able to locate any usages of the phrase “further reflection” from the Solicitors General in the Bush, Clinton, or Bush Administrations. For three cases argued during the October 2012 Term, however, the Obama Administration engaged in some deep reflection. In Kiobel v. Royal Dutch Petroleum, a group of Nigerian nationals living in the United States brought suit “alleging that the corporation [defendant] aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria.”89 . . .
After the change in administration, however, that position flipped. In his Kiobel brief, Solicit
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