Supreme Court

Changing Litigating Positions at the Solicitor General's Office

An interesting question of institutional norms

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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.

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  1. Seems weird to me that a brief filed under a previous client (the previous president) can be withdrawn under a new client (the current president). Would think they’d just file a new brief representing their current client’s views.

    1. Same client, different management.

      1. Right. Imagine a tobacco company back in the day which was fighting all the lawsuits, aggressively lobbying against restrictions on smoking, and was hewing to the line that smoking didn’t cause lung cancer.

        And then there’s a proxy fight, conducted on the grounds that this approach was harming the company. And the reformers win the fight and take over.

        So the new management instructs the lawyers and lobbyists to back off, settle cases, stop opposing regulation, etc. Same client, different management, as you say.

  2. “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.”

    That sounds like Deep Statery to me. It also sounds like a form of election denialism. “I’ll defend the previous administration’s position as if Biden lost the election.”

  3. So this is what NPR wrote: “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.”

    Skipping over entirely the Obama Administration’s norm-violating refusal to defend the Defense of Marriage Act. But that was different, of course.

    1. They would have also refused to defend the Fugitive Slave Act. Unless of course you think that would be improper as well.

      1. So you are saying there is no norm of administrations defending acts of Congress that they disagree with on a policy basis.

        Either there is such a norm and yes, it would even apply to the Fugitive Slave Act, or the alleged norm is a figment of Baud’s imagination.

        1. P.S. I come down on the side that there is no such norm.

          1. If the disagreement between the President and Congress is merely over “policy basis” for laws, how does “take Care” not offend a constitutional provision? And what’s your definition of norm if it doesn’t at least include an express duty?

    2. “Skipping over entirely the Obama Administration’s norm-violating refusal to defend the Defense of Marriage Act. But that was different, of course.”

      The Obama Administration continued longstanding practice of defending federal laws in court, including DOMA. President Obama’s Justice Department filed a brief in 2009, supporting DOMA’s constitutionality in Smelt v. United States. Three years later Eric Holder did say he would cease defending the law in court, but would continue enforcing it until repeal or judicial declaration, and invited Congress to step in and defend its own law. The administration did not oppose BLAG’s intervention to defend the constitutionality of DOMA.

      My personal view is that every administration should defend the constitutionality of every law, out of respect for their coordinate branch (Congress), and I’m not aware of any statute that was so obviously unconstitutional that the President would have a duty not to enforce it. However, whenever presidents fail to do so, there’s always this annoying overstatement of the unprecedentedness of that failure. In my lifetime–so since President Regan–every Republican and Democratic President has either challenged or refused to defend some laws that the administration contended were not constitutional. Every one.

      1. “In my lifetime–so since President Regan–every Republican and Democratic President has either challenged or refused to defend some laws that the administration contended were not constitutional.”

        I haven’t thought through this enough to have a strong view, but my instinct is that there’s a difference between refusing to defend a law versus participating in a challenge against it. That’s not a rebuttal to your general point, just an observation that there might be some argument in favor of not defending a law that wouldn’t justify challenging it. (One possibility is some variant of prosecutorial discretion–there’s only finite resources to go around, why waste them on Case X when there’s higher priority work to do?)

        1. Those who fall into the camp of the President has an independent obligation not to enforce laws it believes are unconstitutional are probably also persuaded that the President should challenge those laws. I’m not one of those people.

          1. Right, but isn’t there some variant where you continue to enforce the law but just say “the SG is really busy right now–we’re not going to spend time on this” if there’s a legal challenge to it? (Seems like maybe this is where Obama ended up on DOMA if I’m reading the rest of the comments right.)

            1. Although it’s been a while, if memory serves the Obama Administration eventually filed a brief agreeing with the trial court’s holding that DOMA was unconstitutional, and it was not based on being too busy or discretion. Justice Scalia’s view (disagreeing with Justice Alito) was that the administration’s agreement with the trial court ceased any “controversy” between the parties, and so robbed the federal courts of Article III standing. The majority disagreed, even though Scalia was correct.

      2. “cease defending the law in court, but would continue enforcing it until repeal or judicial declaration”

        How was DOMA “enforced” other than in court?

        1. Most laws are enforced outside of court. There’s a bunch of things that authorities have to do to enforce a law before it ever makes it to court. Investigate, arrest, etc.

          For DOMA, if the IRS refuses to recognize a marital tax break to a gay couple, that’s an enforcement action that happens outside of court. If the gay couple doesn’t pay taxes because they think they are entitled to a tax credit, and the justice department arrests them, that arrest typically isn’t “in court”.

          1. “justice department arrests them, that arrest typically isn’t “in court”

            Federal felonies requite indictments absent a plea. Is there an indictment process that doesn’t involve a court?

            And what happens once the arrest is made?

            1. “Federal felonies requite indictments absent a plea. Is there an indictment process that doesn’t involve a court?”

              We were talking about arrests, which to my knowledge do not require indictments. But the DOJ could seek a conviction without having to defend the constitutionality of DOMA.

              Anyway, consider how DOMA got before SCOTUS in the first place. If the President’s administration had not done something to enforce DOMA, how come there was a plaintiff to challenge the law in the first place?

              “And what happens once the arrest is made?”

              From my personal experience of being arrested, you’re typically placed into custody by law enforcement, and then shuffled away somewhere to be booked, pending your hearing before a magistrate judge. I’ve not been arrested on federal charges and so assume the process isn’t identical, but my guess is that it’s at least similar. If you don’t get personal bond, there will be a bond hearing, if you post bond you are directed to show back up later for a pre-trial hearing, and so on.

              1. “DOJ could seek a conviction without having to defend the constitutionality of DOMA”

                Oh, they want to put someone in a cage because of an unconstitutional law?

                How tyrannical.

                Listen, Holder tried to be cute. We won’t defend it but will “enforce” it knowing full well he’d do neither. It was a con and you fell for it.

                1. “Listen, Holder tried to be cute. We won’t defend it but will “enforce” it knowing full well he’d do neither.”

                  The IRS told Edie Windsor that she owed $363,053 in federal estate taxes. That’s enforcement.

              2. “Anyway, consider how DOMA got before SCOTUS in the first place. If the President’s administration had not done something to enforce DOMA, how come there was a plaintiff to challenge the law in the first place?”

                IIRC, The case started under the prior administration.

                1. I think the marriage predated the Obama Administration but reportedly Thea Spyer (Windsor’s wife) died in 2009. I suppose it could have been on January 1st, but I can’t find a source right now besides that she died in 2009.

        2. “How was DOMA “enforced” other than in court?”

          Law enforcement officers typically spend most of their time outside of court. They do show up in court, to testify about the arrest and the probable cause that justified it, but the court part is by far the smallest part of law enforcement.

      3. My personal view is that every administration should defend the constitutionality of every law, out of respect for their coordinate branch (Congress)

        Now, I’m all for lawyers advocating as they are told, but I do see some issues with accusations of lack of zealotry…Nowadays Congress has it’s own lawyers. Is there any functional difference between allowing Congress, or a subset of Congress that likes the law, to do the defending?

        1. It’s a complicated question that depends on context and circumstance. I don’t have an issue with Congress paying lawyers to defend the constitutionality of a law, or filing amici briefs. But whether Congress has standing is a separate inquiry, as is whether there is a case or controversy. I think INS v. Chadha was wrongly decided. But even that case is distinguishable from a run-of-the-mill failure of the President to enforce some law, since it concerned a power that all of Congress said was institutionally critical to Congress. The President’s mere failure to enforce a law does not affect any congressional power.

          As a practical matter, I think it’s important–especially in the cases where there is merely a “subset of Congress” complaining–for the courts to decline to interfere where there is a conflict between the President and Congress. The Constitution contemplates conflict between the President and Congress without having SCOTUS intervene (except, I suppose, with the Chief Justice’s narrow involvement in impeachments). Congress and the President are both equally the people’s representatives. In the absence of an actually injured person (as was the case in Windsor, since the plaintiff and the defendant were in complete agreement about what should happen), SCOTUS should not have the power to issue advisory opinions on matters of public concern. The Court’s legitimacy is important for the survival of the republic and the constitutional order governing us, but wading unnecessarily into political spats between its older siblings will almost certainly threaten SCOTUS’s legitimacy, especially in cases like Windsor where the majority’s legal arguments are incomprehensible and indefensible.

          I am wholly persuaded by what Scalia said in his Windsor dissent, both about case or controversy (responding to the majority) and about the consequences of not letting Congress defend laws if the President. I’ll post Section I.B of his dissent in a reply, since it captures all my views on the matter better than I can say.

          1. (The most important bits are highlighted.)

            “A few words in response to the theory of jurisdiction set forth in Justice Alito’s dissent: Though less far reaching in its consequences than the majority’s conversion of constitutionally required adverseness into a discretionary element of standing, the theory of that dissent similarly elevates the Court to the “primary” determiner of constitutional questions involving the separation of powers, and, to boot, increases the power of the most dangerous branch: the “legislative department,” which by its nature “draw[s] all power into its impetuous vortex.” The Federalist, No. 48, at 309 (J. Madison). Heretofore in our national history, the President’s failure to “take Care that the Laws be faithfully executed,” U. S. Const., Art. II, §3, could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws. This would lay to rest Tocqueville’s praise of our judicial system as one which “intimately bind[s] the case made for the law with the case made for one man,” one in which legislation is “no longer exposed to the daily aggression of the parties,” and in which “[t]he political question that [the judge] must resolve is linked to the interest” of private litigants. A. de Tocqueville, Democracy in America 97 (H. Mansfield & D. Winthrop eds. 2000). That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking.

            Justice Alito’s notion of standing will likewise enormously shrink the area to which “judicial censure, exercised by the courts on legislation, cannot extend,” ibid. For example, a bare majority of both Houses could bring into court the assertion that the Executive’s implementation of welfare programs is too generous—a failure that no other litigant would have standing to complain about. Moreover, as we indicated in Raines v. Byrd, 521 U. S. 811, 828 (1997) , if Congress can sue the Executive for the erroneous application of the law that “injures” its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that “injures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.

            Justice Alito’s dissent is correct that Raines did not formally decide this issue, but its reasoning does. The opinion spends three pages discussing famous, decades-long disputes between the President and Congress—regarding congressional power to forbid the Presidential removal of executive officers, regarding the legislative veto, regarding congressional appointment of executive officers, and regarding the pocket veto—that would surely have been promptly resolved by a Congress-vs.-the-President lawsuit if the impairment of a branch’s powers alone conferred standing to commence litigation. But it does not, and never has; the “enormous power that the judiciary would acquire” from the ability to adjudicate such suits “would have made a mockery of [Hamilton’s] quotation of Montesquieu to the effect that ‘of the three powers above mentioned . . . the JUDICIARY is next to nothing.’ ” Barnes v. Kline, 759 F. 2d 21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A. Hamilton)).

            To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.

      4. So you’re saying that Bush’s DoJ defended laws they disagreed with through his entire administration, Obama’s DoJ took three years to decide that they would no longer follow that norm, Trump’s DoJ followed the Obama DoJ’s new norm from day one but somehow it’s all Trump’s fault.

        You have failed to refute Number2’s claim that it was the Obama administration that changed the norm. When during the administration they made that change is irrelevant.

        1. “So you’re saying that Bush’s DoJ defended laws they disagreed with through his entire administration…”

          Every president defends laws they disagreed with. Every president, including both Bushes, also refuses to defend laws they disagree with. As an example, in 2004 President Bush’s acting Solicitor General Paul Clement told the Senate Legal Counsel that he wasn’t going to defend federal law in ACLU v. Mineta (conditioning federal funds on what the ACLU contended was impermissible viewpoint discrimination). They defended the law at the trial court but would not defend it on appeal, and the letter was intended to let the Senate step in and defend its own law. It’s not terribly common but happens every administration. I believe there’s a even a federal statute that specifically requires the DOJ to notify Congress if the DOJ isn’t going to continue defending a law, or appealing adverse judgments against the law.

          “You have failed to refute Number2’s claim that it was the Obama administration that changed the norm.”

          Ok. Regan’s administration challenged a statute that permitted Congress to invalidate administrative decisions made by the executive branch. (Recall, too, that in INS v. Chadha, relied on in US v. Windsor, the solicitor general agreed with Chadha that the statute was unconstitutional. That was 1983.) President HW Bush refused to defend provisions of the Cable Television Act of1992. President Clinton’s DOJ refused to defend a statute that limited rights under Miranda. I’ve already mentioned one refusal by President Bush. And it’s not just those presidents in my lifetime, presidents have been declining (rarely) to enforce laws since forever. Back in 1996, Orrin Hatch asked the DOJ to notify him of every instance in which the DOJ refused to defend a statute. The letter response (with cases listed) is here.

          Now let me be clear, I don’t think it’s right for the DOJ to refuse to defend virtually any legislation. I’m not defending the DOJ’s decisions under Regan, HW Bush, Clinton, Bush, Obama, or Trump. None of the cases strike me as so obviously unconstitutional as to require a coordinate branch to pick a pointless fight with another coordinate branch. But just because I believe in the norm that presidents should generally defend the laws enacted by Congress, does not mean we have to understate how often this norm is violated. I don’t think it was proper for President Obama to refuse to defend DOMA. I don’t think SCOTUS had appropriate standing to decide the case. And despite my profound sympathy for the equal rights and treatment of gay people, and my vehement opposition (on policy grounds) to fucked up laws like DOMA, I think Windsor and Obergefell were wrongly decided as matters of constitutional law. But just sticking to the facts, this is not some Obama era norm busting for the first time. I think it was more pronounced in that administration because it was a bigger culture war issue (in ways that maybe didn’t apply to federal funding conditions on WMATA advertising considerations, or the Cable Television Act).

          Finally, I’m not sure why I have to “refute” anything Number 2 says. Assertions aren’t true just by being made. NPR didn’t even make the claim that Bush had never challenged a law. That’s why the article says his administration “largely” followed the norm (largely being distinct from entirely). There are good reasons to critique the Obama Administration’s failure to entirely follow a norm, and so you don’t need to rely on a false equivalency to make your case. Neither did Number 2.

          1. Oh, you don’t have to refute anything at all. None of us are under any obligation to comment or reply here. But it is hard to interpret your comment above (at 3:37) as anything except an attempt to refute Number2’s comment (from 2:49).

            My own comment was to note that I found what you said (again, at 3:37) uncompelling. I will admit that you’ve laid out your case better since.

  4. You can’t expect the new driver to continue to plow through the woods after the previous driver has driven the car off the road.

    1. But you’re going to make some guy named Norm mad.

    2. I would expect President Biden to defend laws that Congress passed, and so I do think he should change course on the APA. But I also hope President Biden does not decide not to enforce laws that he disagrees with, because that is inappropriate and not consonant with our constitutional system. I believe in the norm that the President ought to enforce and defend the law.

      1. It’s not a “norm”, it’s an explicit constitutionally imposed “duty”:

        “he shall take Care that the Laws be faithfully executed,”

        1. It’s a bit more complicated than that. The Constitution is a law, too, and if the President subjectively believed that a law violated the Constitution, he is presented with competing duties. My personal view is that Presidents should have the humility to recognize that there is often significant disagreement over what the constitutionality of any law, that if a coordinate branch enacted a law it is presumed not to be unconstitutional, and out of respect the President should enforce it even if he or she has doubts about its constitutionality. The basis for this duty is, as you said, constitutional, because I view the Constitution as a document enacting both rules and meta rules, and one of those meta rules is respect for a coordinate branch. But in the context of enforcing laws that are arguably unconstitutional, I don’t think it’s as easy a question as “take Care”.

          As an example, suppose a law was passed by Congress that is generally constitutional, unless one sub-section is enforced as written. A President interested in enforcing, defending, and preserving the overall law might shy from enforcing and defending the component part. My (personal) view is that it should be only in extremely rare cases that the President does so, and I’m not aware of any law in my lifetime that meets that threshold. But I can see the constitutional argument for taking Care of the law by not enforcing some part of it.

          1. I very much agree with NtoJ about this.

            1. I’m not disagreeing with him, either; The President is to take care that the laws be faithfully executed, but recall that the legal doctrine is that unconstitutional enactments aren’t really laws. Since Congress only has power to enact laws pursuant to the Constitution.

              So there’s no actual conflict, when a President confronts a purported ‘law’ that violates the Constitution.

              But, of course, Presidents frequently refuse to enforce laws whose constitutionality is not in doubt, so the duty is regularly violated.

          2. Very instructive commentary

          3. that if a coordinate branch enacted a law it is presumed not to be unconstitutional,

            Uh, have you met Congress?

            1. I think the two of us disagree most on the scope of unconstitutional acts by states and congress. I happen to think very few laws are actually unconstitutional, and I know you disagree and I respect your view. My view is that the Constitution includes a presumption of constitutionality, and it requires the President to govern in a way consistent with that presumption, even though it may be inconsistent with the real world. Is that the bargain I would have made if I were creating a country or constitution? Probably not, although I do think there is some curb appeal to having governmental actors exercise humility in not asserting confidently that everything they disagree with is constitutionally prohibited, and everything they agree with is constitutionally mandated. I’d like SCOTUS’s role in peoples’ affairs to shrink over time.

        2. “he shall take Care that the Laws be faithfully executed,”

          versus

          “preserve, protect and defend the Constitution of the United States.”

          One cannot “defend the Constitution” by enforcing un-constiutional laws. Such laws cannot be faithfully enforced.

  5. “…Still, I thought this perspective given that it came from a longtime litigator in the Solicitor General’s office….”

    ???

    1. Maybe he meant, “…this perspective (was interesting) given….?

      1. yeah, I’m sure it’s a typo, and he left out a few words. But it’s always unfortunate when the omitted words are the ones most critical to the sentence. (eg, ‘interesting’ vs “annoying” vs ‘maddening’ vs “hypocritical” vs ‘praiseworthy,’ etc etc.)

    2. Typos fixed I hope — thanks!

  6. DACA is yet another example. DACA defies Congress’ defeat of the Dream Act, and DACA explicitly violates past immigration laws that Congress enacted.

    But it sounds like the majority in today’s SCOTUS is prepared to say that DACA is the law of the land.

    In 1803, Marbury versus Madison established the principle that SCOTUS could declare acts of Congress unconstitutional, and thus not enforcable. IMO, DACA establishes the opposite, that even if Congress votes no on a new law, that it can become the law of the land anyhow.

    1. “But it sounds like the majority in today’s SCOTUS is prepared to say that DACA is the law of the land.”

      I’m not sure this is right. What’s the basis?

      1. That it can’t be revoked in the same manner that it was implemented.

        1. My understanding is that a majority of SCOTUS held that DACA could not be repealed in a manner that violated of federal law, specifically the Administrative Procedures Act.

          1. It’s enactment was in violation of the APA as well.

            1. Glad to see you don’t care for the unitary executive, but even so that is much less clear.

              1. I don’t see how unitary executive vs not is relevant to the issue of Trump having to jump through more hoops to undo DACA than Obama had to go through to enact it.

                1. What Obama had to do to enact daca was sign the bill after Congress passed it. what? Mitch said no? never mind.

            2. That’s definitely possible. Some people definitely asserted that it did. As far as I know, there was never a ruling on the merits of this question.

        2. Saying that the Trump administration had to follow the APA and that DACA is the law of the land are very much not the same thing.

    2. “DACA is yet another example. DACA defies Congress’ defeat of the Dream Act, and DACA explicitly violates past immigration laws that Congress enacted.”

      DACA resolves a conflict between two different laws that Congress actually did pass.

      1. Or such was the excuse which Obama had already informed us he didn’t believe.

        1. Believing in things doesn’t make them true, just as not believing in things doesn’t make them not true.

    3. One could say Marbury versus Madison was the original sin of the SC. Oh if only Jefferson wasn’t in France…this whole “judicial review” would have been addressed in the Constitution to the protection of the States. IMO only States can decide Federal Legislation is unconstitutional NOT the SC. Period end of story.

  7. In the Abbott and Costello movie The Naughty Nineties, the one that has the Who’s on First routine, an honest showboat captain loses his boat to con artists in a crooked gambling game, who proceed to exploit his reputation for honesty by luring his customers into more crooked gambling and hustles.

    Now that the Solicitor General’s office has been through more or less the same, it’s not clear you can simply go back to an impeccable reputation and be believed and trusted as if nothing had happened. What happens if you lose the boat in a card game again?

  8. Katyal should have written: “Recent administrations have largely followed the tradition of defending laws enacted by Congress, unless important constituent groups of the President’s party strongly opposed the law in question. Where no important political actor cared very much, they maintained the traditional role of the SG. The Trump administration followed past practice in this regard.”
    FTFY.

    1. No, Trump is Norm’s worst enemy. The bar in Cheers won’t serve him.

      1. that’s because it’s just a TV set, and not a functional bar.

        1. Even Sheldon from The Big Bang Theory is laughing at your literalism.

          1. No, he isn’t, because that show ceased production some time ago.

  9. Maybe the SG’s office is a “respository of institutional knowledge” in the sense that they’ve taken so many positions they could write their own edition of the Kama Sutra.

  10. Ideally, deciding that a previous administration’s brief is wrong would be limited to those cases where the previous administration’s brief is wrong.

    1. And in this case I think the administration’s previous position was not just wrong but rediculous, embarassing, a level of legal “logic” similar to what Giuliani et al. were pulling in the election cases. But the 5th Circuit said otherwise.

      1. This is the kind of statement I find meaningless. Admittedly, the Conspirators say this sort of thing all the time. How can a circuit court be “wrong”? It’s like saying the weather is wrong, or that a Poisson spot is wrong. The job of a lawyer is to know what courts will do, just like the job of a weatherman is to know what the weather will do, and the job of a physicist is to know what light waves will do.
        I admit, there could be meaning to the phrase “wrong decision” if it meant “100% certain to be reversed on appeal.” But I doubt that anyone has that confidence here.

        1. “Excellent…let the legal positivism flow through you.” /Darth Holmes

        2. Wrong is wrong, whether a court comes right out and says so or not.
          Justice Taney’s majority decision in Scot v. Sanderson was wrong, and so was the majority holding of Korematsu. Neither one was overturned by a court. One was overturned by Constitutional amendment, and the other just quietly dissipated without ever being expressly overruled.

  11. “the Bush administration had largely followed the tradition of defending laws enacted by Congress, even laws that Republicans generally opposed”
    This reminds me that our current Vice President refused to defend a California constitutional provision recently enacted by citizen initiative, because she was opposed to it. So the US Supreme Court dismissed the case for lack of standing, leaving the District Court judge’s opinion as the last word on the matter.

  12. the Bush administration had largely followed the tradition of defending laws enacted by Congress, even laws that Republicans generally opposed”
    This reminds me that our current Vice President, as state Attorney General, refused to defend a California constitutional provision then recently enacted by citizen initiative, because she was opposed to it. So the US Supreme Court dismissed the case for lack of standing, leaving the District Court judge’s opinion as the last word on the matter.

  13. “This reminds me that our current Vice President, as state Attorney General, refused to defend a California constitutional provision”

    And did the people of California object to this, or did they not care?

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