It was once rare for an administration to change its legal position in cases before the high court. Trump did so in his first term and has signaled his intent to do it again.
The Trump administration is retracting the federal government's opposition to a state law that restricts specific transition care for transgender adolescents — a sudden yet anticipated shift from the Biden administration’s stance in a case currently before the Supreme Court. On Friday, the government’s leading appellate attorneys informed the Supreme Court that the Justice Department was renouncing the Biden administration’s challenge to a Tennessee law that prohibits hormone and puberty-blocker treatments for minors. “The government’s previously articulated views no longer reflect the position of the United States,” stated the solicitor general’s office in a letter to the court. The case, which involves other parties contesting the ban, will proceed, with a decision expected by summer. This significant change in direction follows President Donald Trump’s directive last week to withdraw federal support for gender transition care for individuals under 19 years old. Traditionally, a new president entering the White House did not automatically result in legal shifts within the solicitor general's office, which comprises elite Justice Department lawyers who represent the U.S. government's perspectives before the Supreme Court. However, this norm, like many others, has diminished over the past eight years as the country has become increasingly polarized, leading to a rise in politically charged cases presented to the justices. During Trump’s first term, there were notable shifts in four cases, where established legal precedents concerning labor unions were challenged, and the government’s position on a federal voting rights law was altered. Michael Dreeben, who served as a deputy solicitor general under both Republican and Democratic administrations, noted in a law review article that these reversals were “abrupt and appeared strikingly at odds with institutional norms.” The Biden administration also changed its stance in at least six cases, as indicated by a review of the office's briefs conducted by Adam Feldman, founder of Empirical SCOTUS. Most prominently, the solicitor general’s office informed the court in early 2021 that Trump’s solicitor general incorrectly argued that the Affordable Care Act was unconstitutional. Currently represented by acting solicitor general Sarah M. Harris, the second Trump administration has requested the justices to pause proceedings in four ongoing cases related to student loans and environmental issues. These requests imply that the new administration intends to alter the government’s position on these matters, and legal observers anticipate additional reversals. Harris, who declined an interview request through a department spokesperson, also withdrew the government’s amicus brief in two Louisiana redistricting cases that may impact the influence of Black voters in the state. “Following the change in Administration, the Department of Justice has reevaluated the government’s stance in these cases,” wrote Harris, who is managing the office while D. John Sauer's nomination is pending. Sauer previously represented Trump at the Supreme Court last year, asserting broad immunity from criminal prosecution for his official actions aimed at overturning the 2020 election results. There exists an inherent tension within the solicitor general’s office. All attorneys, except for the solicitor general and their principal deputy, are career employees who serve across administrations rather than being political appointees. When the office adopts legal positions, is it advocating for the long-term interests of the U.S. government? Or is it serving the current White House and political officials in power? While the notion of a predominantly nonpartisan legal team representing the U.S. government at the Supreme Court may seem outdated in today's highly polarized climate, the office has historically maintained its institutional integrity.
“Typically, there are significant repercussions and costs for the solicitor general when altering the United States' stance in a case,” remarked Gregory Garre, who represented the George W. Bush administration before the Supreme Court. According to him, the Supreme Court has historically viewed the credibility of the solicitor general's office as reliant on “the principled nature of its positions.” Notably, two current justices have previously held prominent roles within that office: Justice Elena Kagan served as President Barack Obama’s solicitor general, while Chief Justice John G. Roberts Jr. was the second-in-command during George H.W. Bush’s administration. When Obama took office following eight years of Republican leadership, his representatives at the Supreme Court adopted a “highly restrained approach to reversing the positions of their Bush predecessors,” noted Dreeben. In the 1980s, Rex E. Lee, who served as solicitor general under President Ronald Reagan, sometimes refrained from fully endorsing the administration’s policy stances in court, especially regarding issues of religion and public life. “There has been an expectation that my role is to advocate for the Administration’s policies at every opportunity and to articulate true conservative principles through my briefs. It is not. I’m the Solicitor General, not the Pamphleteer General,” Lee stated in an interview after his tenure. David Strauss, who was an assistant solicitor general during Lee's time and now teaches at the University of Chicago Law School, differentiated between shifts in court outcomes driven by a government agency revising its policies and changes in the office’s long-standing legal positions. In the case concerning student loans, the Trump administration requested that the justices pause proceedings while the Education Department reevaluates a Biden-era regulation that allows loan forgiveness for defrauded student borrowers. This shift would indicate a change in how an agency interprets policy, rather than suggesting to the justices that a new interpretation of a federal criminal statute or the Constitution necessitates a different legal outcome. “That’s trickier,” Strauss explained regarding the latter scenario, “because the law is the law, isn’t it? Are you implying that your predecessors were poor lawyers?” On Thursday, the Supreme Court approved the administration's request for a pause in the student loan case but opted not to delay the briefing schedule in four cases involving the Environmental Protection Agency.