Trump’s Supreme Court Agenda Is Likely to Include Legal U-Turns

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Trump’s Supreme Court Agenda Is Likely to Include Legal U-Turns

In recent years, new administrations have not been shy about disavowing positions taken by their predecessors.

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By Adam Liptak

Reporting from Washington

Under the Trump administration, the government is very likely to flip its position in a major case pending in the Supreme Court, on the rights of transgender minors, a reversal that reflects the sharply changing direction of the next administration.

It may also take steps to thwart a ruling on so-called ghost guns. And it could disavow the Biden administration’s positions in an array of cases involving the Environmental Protection Agency, the Food and Drug Administration, criminal sentencing and employment discrimination.

Such reversals were once rare. The solicitor general, the Justice Department official whose office represents the United States in the Supreme Court, generally tries to protect its reputation for consistency, credibility and independence. Solicitors general of both parties have said they are wary of veering from positions staked out by their predecessors.

Justice Elena Kagan, who was President Barack Obama’s first solicitor general before joining the court, said in 2018 that “a change in position is a really big deal that people should hesitate a long time over.”

Michael R. Dreeben, who worked in the solicitor general’s office for more than 30 years and argued more than 100 cases in the Supreme Court, surveyed the landscape in a 2021 article in The Yale Law Journal.

“The Obama administration swept into office following eight years of Republican rule, and ample areas existed for revision and change,” Mr. Dreeben wrote. “But President Obama’s solicitors general took a highly restrained approach to reversing the positions of their Bush predecessors. During President Obama’s first term in office, no cases featured overt reversals of positions taken in the Supreme Court.”

When the solicitor general made a modest change late in Mr. Obama’s first term, Chief Justice John G. Roberts Jr., who once served in the solicitor general’s office, took note.

“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 office in 2012.

The Obama administration had filed a brief in a minor case on pension plans 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 joke around the solicitor general’s office had long been that “upon further reflection” actually meant “upon further election.”)

The first Trump administration was considerably bolder, Mr. Dreeben wrote. It flipped positions in four major cases in its first full Supreme Court term, including ones on workers’ rights and voting rolls.

“The reversals were abrupt and appeared strikingly at odds with institutional norms,” Mr. Dreeben wrote. But the justices did not seem to think the shifts particularly noteworthy, and the Trump administration prevailed in all four cases.

It may have helped that the administration’s briefs had abandoned the phrase “upon further reflection” in favor of something blunter. “After the change in administration,” a typical brief said, “the office reconsidered the issue and has reached the opposite conclusion.”

The Biden administration was not shy about switching positions, either. It disavowed the approaches of the Trump administration five times and lost four of those cases, according to a tally by Thomas Wolf of the Brennan Center for Justice.

The transgender rights case, United States v. Skrmetti, No. 23-477, is a challenge brought by the Biden administration to a Tennessee law that bans some medical treatments for transgender minors. It is scheduled to be argued in December.

Although the law was also challenged in a separate lawsuit by families and a doctor, the justices granted only the Biden administration’s petition seeking review. The Trump administration will almost surely reverse course, and the court will sooner or later have to make adjustments if it is to decide the constitutionality of the law.

There are several possible procedural permutations. Ed Whelan, a conservative legal commentator, suggested this one on social media: The court could dismiss the Biden administration’s petition as improvidently granted, grant a petition from the private plaintiffs, hear arguments in the spring and decide the case by the end of the term in late June or early July.

The case on ghost guns, Garland v. VanDerStok, No. 23-852, was argued in October. But the Trump administration could render it moot by rescinding the regulation at issue in the case, which places limits on kits that can be bought online and assembled into untraceable homemade firearms.

In all, Mr. Wolf said, it was possible that the Trump administration could change positions in a half-dozen sets of cases, roughly in line with the Biden administration’s track record. That was, he said, understandable, to a point.

“All of these legal disputes are taking place within the context of the democracy that we’re supposed to have,” he said. “As part of that democracy, elections are supposed to have consequences for policy, including legal policy. So it’s natural to assume that if one administration succeeds another with significantly different policy views that their legal positions should change as well.”

“However,” he added, “it’s critical that in the course of making those changes that the administrations are also recognizing some bedrock principles about the rule of law and the legitimate boundaries of our constitutional rights.”