When the Solicitor General Changes His Position "Upon Further Reflection"

My 2018 article, Presidential Maladministration, tracked instances when the SG reversed positions.

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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, Solicitor General Donald Verrilli explained that "on further reflection, and after examining the primary documents," the State Department "acknowledges that [Bradford's] opinion is amenable to different interpretations." 95 Now, the government concluded that the ATS "could have been meant to encompass . . . conduct" outside the United States.96

During oral arguments, when Solicitor General Verrilli articulated that extraterritorial "ATS causes of action should be recognized," Justice Scalia interjected. 97 "That is a new position for the . . . State Department, isn't it?"98 Verrilli replied, "[i]t's a new—."99 Justice Scalia interrupted him midsentence. "Why should we listen to you rather than the solicitors general who took the opposite position . . . not only in several courts of appeals, but even up here."100 The United States has "multiple interests," Verrilli answered, including "ensuring that our Nation's foreign relations commitments to the rule of law and human rights are not eroded."101 He continued, "[i]t's my responsibility to balance those sometimes competing interests and make a judgment about what the position of the United States should be, consistent with existing law. . . . And we have done so."102

Justice Scalia once again interrupted the Solicitor General. "It was the responsibility of your predecessors as well, and they took a different position. So . . . why should we defer to the views of the current administration?"103 With a dash of humor, Verrilli answered, "because we think they are persuasive, Your Honor."104 Over laughter, Scalia answered, "Oh, okay."105 Chief Justice Roberts was not persuaded. Reaffirming Scalia's position, Roberts warned, "whatever deference you are entitled to is compromised by the fact that your predecessors took a different position."106 Ultimately, agreeing with the government's new position, the Court determined that "Attorney General Bradford's opinion defies a definitive reading and we need not adopt one here."107 No deference was granted to the reversal, however.

In Levin v. United States, the second case in this reflection trilogy, the petitioner suffered an injury at a Naval Hospital and sued the United States for a battery.108 The Federal Torts Claim Act ("FTCA") generally waives the government's sovereign immunity for claims of negligence, but exempts intentional torts.109 Levin claimed that the Medical Malpractice Immunity Act, commonly known as the Gonzalez Act, permitted him to sue the United States for a battery. 110 In the 1990 case of United States v. Smith, the Bush Administration rejected this construction of the Gonzalez Act.111 Solicitor General Kenneth W. Starr's brief contended that the FTCA was the exclusive remedy for such claims, and suits in federal court were not available.112 The Supreme Court in Levin noted that its prior "decision in Smith was thus informed by the Government's position."113 After several changes in administration, however, that position flipped. In 2012, the government "disavow[ed] the reading of [the statute] it advanced in Smith."114 In a footnote, Solicitor General Verrilli expressly stated, "[t]he government does not adhere to the statements in that brief," which was filed in 1990.115 Amicus curiae—appointed by the Court because the United States agreed with the lower court's judgment—flagged this sudden reversal: "When every reader comes away with the same understanding of a provision," amicus wrote, "it is powerful evidence that the shared understanding is the provision's natural meaning."116 The friend-of-the-court added, "[t]he government offers very little in response" to explain the change after "remain[ing] consistent for many years."117

During oral arguments, Justice Kennedy asked the Government about changing its position concerning a "central theory for your interpretation of the Act."118 He joked, "I know you would have been disappointed if we didn't ask you about this."119 Deputy Solicitor General Pratik A. Shah replied, "[y]es, you are correct . . . . This is a change of position. We revisited it."120 Unlike in Kiobel, the Levin Court "agree[d] with the Government's earlier view" of the FTCA "and not with the freshly minted revision."121

The final case in this triad was US Airways, Inc. v. McCutchen. The appeal considered whether an employee who recovered damages from a tortfeasor was required to reimburse his health benefits plan for the entire amount it had previously paid out, including attorney's fees.122 The employee argued that the socalled "common-fund doctrine" would override the express terms of the policy and allow him to withhold his attorney's fees from the reimbursable amount. In 2003, the Solicitor of Labor filed an amicus brief with the Supreme Court expressly rejecting this equitable defense, urging the Court to enforce the terms of the plan.123 After the change in administrations, that position flipped. In the government's 2012 brief in McCutchen, the Solicitor General explained that "upon fur-ther reflection, and in light of this Court's discussion" in a 2011 Employee Retirement Income Security Act ("ERISA") decision, "the Secretary [of Labor] is now of the view that the common-fund doctrine is generally applicable in reimbursement suits" under ERISA.124 This is the exact opposite argument the Labor Department advanced nine years earlier.

During oral arguments, Chief Justice Roberts criticized Deputy Solicitor General Joseph R. Palmore about this reversal. "The position that the United States is advancing today," Roberts said, "is different from the position that the United States previously advanced."125 The Chief, with a tinge of annoyance in his voice, said that "further reflection" was "not the reason" why the position changed.126 He added for emphasis, "it wasn't further reflection."127 Roberts, who had served in the Reagan and Bush Administrations decades ago, rhetorically asked whether the real reason was that "we have a new secretary now under a new administration, right?"128 Palmore attempted to answer, "[w]e do have a new secretary under a new administration," but Roberts interrupted him.129 "I think it would be more candid for your office to tell us when there is a change in position, that it's not based on further reflection of the Secretary. It's not that the Secretary is now of the view—there has been a change."130

Kiobel, Levin, and McCutchen, each raising the same issue, were argued during a span of four months. Sensing a disquieting trend, Chief Justice Roberts sent a message of sorts to the Obama Administration: "We are seeing a lot of that lately. It's perfectly fine if you want to change your position, but don't tell us it's because the Secretary has reviewed the matter further, the Secretary is now of the view. Tell us it's because there is a new secretary."131 Palmore responded that since the earlier brief was filed, the "law has changed."132 The Chief Justice replied, "[t]hen tell us the law has changed. Don't say the Secretary is now of the view. It's not the same person. You cite the prior Secretary by name, and then you say, the [new] Secretary is now of the view. I found that a little disingenuous."133 The Chief had openly rebuked the Solicitor General's office for using this malapropism to justify maladministration. Supreme Court advocate Roy Englert Jr., who worked in the Solicitor General's office, observed that Chief Justice Roberts was "making a broader point" with his criticism, referring to the recent string of cases where the Obama Administration had reversed prior positions.134