Changing Litigating Positions at the Solicitor General's Office

An interesting question of institutional norms

NPR has this story (quoting Jonathan Adler among others) about the choices faced by President Biden's solicitor general's office. When should they withdraw briefs filed by the previous administration and replace them with a new position?

As Katyal observes, the Bush administration had largely followed the tradition of defending laws enacted by Congress, even laws that Republicans generally opposed. With rare exceptions, that is one of the traditional jobs of the SG. But the Trump administration did not adhere to that norm.

Perhaps the most glaring example is a case currently before the court in which the Trump administration joined a challenge to the Affordable Care Act. Although the Supreme Court had twice before upheld the law, the Trump administration asked the court to strike it down in its entirely.

The court has already heard arguments in the case, so the question for the Biden administration is this: Should it weigh in at this late date or let sleeping dogs lie?

Because the Justice Department's position in a variety of ways violated so many legal norms, "the case for informing the court that the Justice Department no longer stands behind those briefs, I think is stronger than it would be for a lot of cases," says Case Western University law professor Jonathan Adler.

Katyal says he would go further, not only withdrawing the Trump administration brief but filing a new one in its place. …

Still, the Biden administration knows there will be lots of times in the future when it is trying to persuade a very conservative court to leave undisturbed the policy positions of a far more liberal administrations, positions that, as a pure policy matter, the conservative justices likely disagree with. So the new administration doesn't want to start out by burning its bridges if it doesn't have to.

The consensus view of those quoted in the article is that a new administration should switch position for maybe a few really important things that they think the previous administration got really wrong, but otherwise presumptively stick to the litigating positions of past administrations. And this reflects a broader institutional norm in the Solicitor General's office, that the office should presumptively argue that the law should be interpreted however the office argued in the past that the law should be interpreted.

Interestingly, though, this norm runs counter to an argument recently made by former Deputy Solicitor General Michael Dreeben in the Yale Law Journal Forum. Dreeben, who argued 105 Supreme Court cases, argues that because the Solicitor General's office is not a court, it should actually use the opposite presumption:

Although the judicial system operates with a presumption of retaining precedent even when the Court regards it as wrong, I suggest that the opposite presumption should apply to OSG when it concludes that its prior position is wrong. That is, OSG should operate with a presumption in favor of providing the Supreme Court with its current view of the law, rather than sticking to error

Dreeben adds two caveats: that because the SG's office has a client, "[a]rriving at a position thus requires balancing both the institutional interests of the United States and a purely legal analysis of the case at hand," and that "the Office should proceed very carefully before concluding that its prior position was wrong." I thought this perspective was especially interesting given that it came from a longtime litigator in the Solicitor General's office.

On the merits, it seems to me that this is a general application of the question of when one should build a certain kind of credibility and when one should spend it. The Solicitor General's office would like the Supreme Court to defer to it, seeing it as some kind of wise, not-too-political respository of institutional knowledge and tradition. It's hard to get the Court to do this if the office is seen as just another group of lawyers with the usual views one would expect them to have given the immediate needs of their client.

If you can build that kind of institutional capital, it's tempting to spend it in the cases that are most important to you or your client. And yet if you do that too transparently, it doesn't work. Maybe there's some very clever mixed equilibrium strategy that works best here, but I don't know whether anybody has found it in practice.