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

NEXT: Today in Supreme Court History: February 2, 1790

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  1. The SG should have been more forthright. The Chief Justice should have been informed that the cause of the change was politics, the Founders' preferred means for adjusting policy.

    1. The founders preferred means for adjusting policy, but not their preferred means for adjusting the law. The law remained the same in all of these cases, and unless the previous interpretation was clearly erroneous, then the meaning of the law should not change with administrations. Unless of course they use the founders preferred means and change the law.

      1. In some ways, this is a classic formalism-realism fight. On the one hand, of course the law hasn't changed. And we at least hope that the SG's office is trying to be intellectually honest. Really, I think we would all hope that on some level. If Obama's SG looks at a statute and says "this obviously requires a conservative result I don't like", we would hope they are straight with the Court. If Trump's SG looks at a statute and says "this obviously requires a liberal result I don't like", same thing.

        But we all also know that these are political appointees, that the DOJ is responsive to the political concerns of the parties that staff it, and that people's interpretations of the law are colored by their political views.

        Bottom line, I think the Court should be a little less perturbed about this. One thing to remember is that while the pretense is that the Court gives a lot of weight to the SG's opinion, at the end of the day, the Court has to interpret the law itself. The SG's opinion should be only as good as the argument the office makes. So who cares if the SG flip-flops?

        1. "One thing to remember is that while the pretense is that the Court gives a lot of weight to the SG’s opinion, at the end of the day, the Court has to interpret the law itself. The SG’s opinion should be only as good as the argument the office makes. So who cares if the SG flip-flops?"

          This is correct, and apparently was the result, but you'd think that the SG would be have an argument for why the court ought to give more weight to the incoming SG's opinion.

      2. Kazinski, I question whether you have that right, although I concede if you are wrong you are wrong in plentiful company. I have no doubt that the founding view with regard to law included a justification by necessity. That is explicit. And John Marshall, at least, was clear that determinations of necessity were for the legislatures, not for the courts.

        Seems to me that opens plenty of room for varying as-applied interpretations of a legitimate law—which is to say a law tailored to achieve a constitutional end—based on policies touching on necessity. And of course, any finding of legally applicable necessity would involve a court's deference to the legislature, right? Or am I wrong? Is it your view that it is for the courts to review questions of necessity, even for laws which satisfy the constitutional requirement of pursuing legitimate ends?

  2. Roberts warned, "whatever deference you are entitled to is compromised by the fact that your predecessors took a different position."

    Was there a question of policy involved? If so, Roberts was having a bad day on the bench.

    1. You are confused, why would the courts be ruling on policy?

      Courts rule on the law.

      1. Kazinski, if that were true, it seems like Robert's remark about predecessors' different positions would be a confession of prejudice against the current administration. What would legitimately compromise deference would be a Supreme Court ruling to the contrary, creating an interest in stare decisis. Had Roberts said that, I would not be complaining. But maybe I don't get it. IANAL. Can you explain to me why deference sooner trumps deference later?

    2. "Our policy is it is no longer unconstitutional. Or suddenly is."

      This seems more than about policy if you've started to drag the courts into it as an issue of constitutional propriety.

  3. If the government switches position the Court seems to have a clear "it's a political question" out from having to rule on the issue.

    1. This seems like a responsible response from the court.

      One question seems obvious is should the SG be more careful in weighing in on cases. The ACA seems a good example. The Obama Administration should definitely support the Act. Question is should the Trump Administration have weighed in on challenging the ACT or just sat it out and let the state do the challenge. I think this problem could be solved by more thought on the part of the administrations and the SGs.

      1. The federal government shouldn't weigh in on whether or not an important federal statute violates the federal constitution?

    2. Could you elaborate? I'm not seeing the connection.

    3. Whether a veteran can use the courts to sue the federal government for an injury sustained at a VA hospital can’t really be a political question to be re-decided by each administration as they occur. While whether or not he can sue comes down to a somewhat subjective interpretation of the law, equal protection of the laws requires a consistent result for every plaintiff, not outcomes based on political considerations.

  4. The only question that remains is how should courts treat this reversal."

    The only question for the court is "Do you want to keep your jobs?"

    1. Why wasn't that a question when Trump was being buried in national injunctions?

  5. Seems like a legit question that incoming SG's ought to be prepared to answer.

  6. Solicitors General and their supporters need to get over themselves.

    Their bosses change based on (supposedly) the will of the people - this change includes changes in legal positions from time to time, and if the SG doesn't like a change of position (s)he can resign and let some other SG defend the new position.

    What an arrogant, swampy doctrine to give a special role to the SG to develop policy independently of the elected President.

    1. In that case the SG should espouse the position of the Administration and not cloak it in the false allusion to a deeper understanding of the law.

      1. That or else resign, and then on to the lecture circuit and Congressional committees to talk about how the current administration is violating the Rule of Law.

        1. Followed by a book: A Former Solicitor General Confirms Your Preconceptions About the Current Administration.

  7. Laws should not be this flexible. It has always annoyed me that appeals do not have to be unanimous; if learned judges can split 5-4 on how to interpret a law, how can ordinary people possibly know what a law means and how to obey it? I'm not talking about interpreting facts, but laws themselves.

    And this SG change with administration is more of the same. If a law is so flexible that elections change their interpretation, something is wrong; how are ordinary people supposed to know how to obey a law?

    Far as I'm concerned, any non-unanimous appeal decision, or a change of interpretation like this, should throw the entire law out as vague, confusing, unclear, etc.

    1. I agree with the principle but your "unanimous appeals" idea won't answer it. At least, not alone. The problem is which way unanimity must go. If the law could mean A or B and the appeals court can't decide unanimously whether it's A or B, does that mean the trial court's decision (A) remains in effect? Or does it default to B somehow?

      What I'd like to see (and that I think you argue for in your last paragraph) is a rule that if the appeals court can't reach unanimity, then the law is void for vagueness.

      But 'void for vagueness' is an entirely different outcome C. Nobody in the case argued for C. Likewise, nobody directly argued against it. C might have social consequences that are far worse than either A or B. Is that acceptable as the cost of holding legislatures (and/or regulators) accountable for writing sloppy laws? I think so but I can see reasonable arguments against it.

      1. I meant primarily interpretation of laws. If the judges can't agree on what a law means, the law should be stricken in its entirety as too confusing, vague, etc.

        1. Why doesn't this logic extend to the Constitution itself?

          1. To a large extent, it should be extended to the consitution itself. One of the major points of the United States was consent of the governed. If we can't all agree on what it means, then everyone goes their separate ways until they have a meaning they do all agree on. This would probably work a lot better than. what we have.

            1. Artifex, that's pretty humorous.

        2. That's a fair point when it comes to criminal law, but it would be irresponsible as applied to civil cases. Take the Bankruptcy Code, which has generated its fair share of circuit splits since 1978. Throwing out the entirety of federal insolvency law is hardly a feasible option for civil society. Even tossing a specific tangled provision (say, the cap on claims for rejected leases of real property) would lead to significantly worse results for debtors and their stakeholders than either of the two leading interpretations. If a split really matters, it will bubble up to the Supreme Court who will choose one interpretation or the other. And other provisions (like the meaning of "ordinary course of business") just aren't susceptible to precise rules, and Congress has to be able to trust bankruptcy judges to get the gist and apply the concept in a commercially reasonable manner on the specific facts of each case.

          1. "But it would be irresponsible as applied to civil cases. Take the Bankruptcy Code, which has generated its fair share of circuit splits since 1978."

            I think you are misreading the unanimity requirement being proposed above.

            As I read it, the requirement being proposed is for unanimity within a specific Circuit Court panel hearing a specific appeal. It would still allow for splits between circuits.

          2. My point is that if learned judges with years of experience cannot agree on the interpretation of a law, as evidenced by split decisions concerning that interpretation, the law should be thrown out as too confusing and unclear for ordinary citizens to understand and obey.

            This is not about the facts in a case. This is about interpreting laws.

            I defy anyone to justify why ordinary people should be expected to obey laws which judges cannot agree on.

            Send the laws back to the legislators, tell them to fix them and re-pass them from scratch.

            1. So the notion of as-applied challenges goes out the window, because the law is always the same, without regard to the facts of the case?

              Also out the window, any idea that policy is allowed scope within the law, on grounds of necessity. In essence, an invariable law outlaws policy?

            2. I defy anyone to justify why ordinary people should be expected to obey laws which judges cannot agree on.

              Because laws are written in human language, not a computer programming language. There is no such thing as an unambiguous language, in which each word/sentence/paragraph has exactly one meaning. There could be no laws by your standard.

            3. I'm talking about laws, not application of laws to facts.

              Let me be specific. 11 U.S.C. 502(b)(6) says that a claim in bankruptcy shall be allowed "except to the extent that ... if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following [a certain date]; plus (B) any unpaid rent due under such lease, without acceleration, on the [same date.]"

              This statute is a drafting disaster. Practically every phrase has given rise to litigation and disagreement among judges. What is "rent reserved"? What does "without acceleration" mean? "Due"? Does 15 percent refer to 15% of the remaining rent or 15% of the remaining time period of the lease? Is the cap really meant to apply if the debtor is solvent?

              But throwing out all of section 502(b)(6) just because the drafting is turgid and ambiguous would allow landlords to have uncapped claims for the entire future term of their leases -- not even close to *any* reading of the statute. It's not the courts' job to grade Congress' homework, even when Congress has done quite poorly. It's the courts' job to give meaning to the laws that the people's representatives enact, as fairly, intelligently, and conscientiously as they can.

      2. That's the problem with our legal feedback loop.

        Currently the process is

        (1) Write law
        (2) Apply law
        (3) Test law in court
        (4) Go back to (2)

        As a consequence, the laws "on the books" are rarely, if ever, updated. There are plenty of laws that are part of state criminal codes that are unconstitutional, but since the state legislatures never repealled or replaced them, are still part of the code.

        What we need is for the loop to go back to step 1, where new decisions are properly incorporated into the law, rather then having a book of law, and a much bigger book of "law according to the judges".

    2. Three Felonies a Day...

    3. Setting aside the fact that many appeals don't turn on a disagreement about statutory meaning, wouldn't this logic mean that a trial judge could never be reversed? Even if the appeals court is unanimous, their disagreement with the "learned" trial judge would be proof that the law is too confusing to be valid, no?

      1. If the disagreement is about the law itself, that is a reasonable outcome.

        I'd extend this to similar trial cases interpreting the same law differently, but only if differences in the two trials were not the source of the different interpretations.

  8. First, this "upon further reflection" phrase is not a malapropism. Not even close.

    Second, it seems clear that the SG should explain the real reson for the change of position, rather than making one up.

    Finally, only one of the three cases involves the US as a litigant, so it strikes me that the initial decision to intervene is inherently political. If so, what's wrong with reversing the government position fro political reasons? Alternatively, could the government just withdraw, and leave the actual litigants to fight it out?

    1. Nothing's wrong with reversing the government position for political reasons. What was wrong was attempting to cover up that political reason with the expression " upon further reflection", falsely implying that they would have made the same change of position even without the political reasons. In other words, they lied - not about the change but about their reason for it.

      Regardless, the point of the article is that the SG gets special deference because the office is perceived to have extra credibility for their perceived impartiality. The decision to change positions for political reasons, even when perfectly legitimate, damages that credibility and could cost the office their special deference in court.

      1. What was wrong was attempting to cover up that political reason with the expression ” upon further reflection”, falsely implying that they would have made the same change of position even without the political reasons.

        I don't disagree.

  9. What is Roberts' problem?

    Most of the cases SCOTUS takes involve unsettled and murky questions of law. Many involve Circuit splits, which means that you have some very smart Circuit judges coming down on both sides of the question. And, of course, the litigants are by definition on opposite sides of the question, and by the time they reach SCOTUS, have very good counsel.

    So in the vast majority of cases, the legal questions SCOTUS faces are debatable.

    So why is it at all surprising that a change in administration could yield a change in the view of how a statute, let alone a Consitutional provision, should be interepreted?

    Also, there are different schools of thought as to how statutes and Constitutional provisions should be interpreted, and these are roughly aligned with the political parties. So a new administration will likely lean towards one school or the other, and that will affect its position on particular cases.

    Should the SG office avoid euphemisms? Maybe. So should SCOTUS, which is not reticent to use euphemisms to cover its own policy choices. SCOTUS likes to maintain the illusion that it is engaged in neutral legal interpretation, when often it is engaged in policy making with a veneer of legal reasoning. You can hardly blame the SG's office for following its lead.

    1. To illustrate my point, let's posit an alternative universe. Circa 1970, one of the states (say New York) adopts a very liberal abortion law. Like today's NY law -- abortion is permitted right up to the point of birth.

      Someone challenges that as not providing "equal protection" to the unborn under the 14th Amendment. Let's call it Woe v. Raid. A 5-4 majority on SCOTUS agrees, and holds that any state permission of abortion after conception violates Equal Protection, and states are obligated to prosecute the offenders. They cite the penumbras and emanations in the Constitution.

      I have little doubt that most of the anti-abortion crowd would become very enamored of the "living constitution" school of thought, and the pro-choice crowd would become strict constructionists/originalists. A few honest souls might agree with Scalia that the 14th amendment says nothing about abortion one way or the other, but most would flip their philosophies from our world.

      Legal theory has real-world consequence, and people pick their views based on outcomes. That is reality.

  10. Count me in the "Roberts was being a grouch" camp.

    Unless a law is iron-clad, different administrations are going to interpret it differently. And if a law was iron-clad, then it would never get to the SCOTUS in the first place.

    So him getting annoyed that two solicitor generals, decades apart, came to different conclusions? Yup, total grouch.

    And even the "well, they should have just said it was a political issue" doesn't cover it, since it's never been normal for lawyers to admit that an interpretation is influenced by politics. Lawyers and judges have always taken part of a big masquerade, pretending there are no politics. Getting mad because someone is doing the thing you expect of them is pretty, well, grouchy.

    Or to put it another way... if Roberts really wanted people to admit the "real" reasons behind their arguments and decisions, rather then hiding behind rhetoric and legalese, that's a trend he can start right in his own written decisions. I have the highest of doubts he ever will.

    1. It's also not clear why the first SG's views should be viewed as more reliable than the second SG.

      In the administrative law context, Justice Rehnquist (with Chief Justice Burger, and Justices Powell and O'Connor) had it right in his opinion defending the Reagan Administration's loosening of auto safety standards:
      "The agency's changed view of the standard seems to be related to the election of a new President of a different political party. It is readily apparent that the responsible members of one administration may consider public resistance and uncertainties to be more important than do their counterparts in a previous administration. A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations. As long as the agency remains within the bounds established by Congress, it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration."

    2. Lawyers and judges have always taken part of a big masquerade, pretending there are no politics.

      That may only be correct for values of, "always," extending not quite back to the founding era. The founders dignified the role of politics a good deal more than folks do now. The constitution awards an honored place to politics, with regard to both law and policy. The founders expected politics to be the principle tool citizens used to manage public affairs, and the founders tasked both citizens and officeholders to try to make that work well. They also knew enough about reality to be concerned that notion might prove too aspirational in practice. For a long time, and with intermittent exceptions, their faith was better founded than their skepticism.

      In today's public life, not so much. In VC commentary, you no longer see much of that inclination to honor politics as legitimate for much of anything. It's a loss that makes governing notably harder.

      1. "principal tool," of course, not, "principle tool"

  11. Stop asking the SG to "express views" if the US isn't a party. Actually, eliminating any briefs from a non party would be great. Maybe the S/C can hear more cases a term then.

    If the US feels it important enough, it can move to intervene.

    1. I disagree about not letting non parties file briefs, one of the tings the Supreme Court factors in when selecting cases is circuit splits and questions that affect large constituencies. Take the whole WOTUS series of cases, that affect land owners across every state. Are they each going to have to bring their own suit all the way up to SCOTUS if the don’t think the two parties are looking at all aspects of the issue?

  12. The client decides the lawyer's position. The SG lawyers are very good. But they are advocates for their client. No one should pretend otherwise. If the Government changes its position, they will make the best argument they can for the new position. But the statute in question either means X or it means Y, it's either constitutional or its not. And it doesn't matter whether the lawyer making the argument wears a morning coat (as SG lawyers used to do), or a two-piece suit.

  13. But the statute in question either means X or it means Y, it’s either constitutional or its not.

    Really? The statute cannot be X for this set of facts, and Y for that one? No as-applied challenges?

    Likewise, the statute cannot be unconstitutional in a case where it too much burdens first amendment rights, but constitutional in a case where such rights are not in question?

    1. Stephen, you must be a lawyer, to obfuscate the issues so well. Next thing you're going to explain why the morning coat makes such a big difference.

      1. As I said above, IANAL.

  14. An as applied challenge doesn’t mean it’s interpreted differently for X and Y. It means X is a protected activity, and Y is not, even though their conduct is mostly identical.

    For instance Y runs commercials and lies about having a solution to global warming and uses the lies to solicit money for his senatorial campaign. X runs commercials and lies about having a solution to global warming and uses the lies to solicit money for his Non-profit.

    Y is engaging in a protected activity and X is not, even though there is nothing different than the address to send the money to.

  15. Kazinski, could you finish the story on that X and Y example. The court decides the same way in both cases? If not, why are you saying, "doesn't mean it's interpreted differently? Seems to me, "You win," is a different interpretation than, "You lose."

    1. Seems to me, “You win,” is a different interpretation than, “You lose.”

      Uh, no...they're different results based on a substantive difference in the facts of the two cases (the entity for which money is being solicited) that the relevant statute(s) is/are being applied to, not based on different interpretations of that/those same statute(s).

  16. I agree with most of these, but to me, "the law has changed" is a legitimate use of "further reflection." That's a situation where the office has revisited a position based on changes outside of their control and isn't necessarily an indication that the office changed its view due to a change in leadership (which I read to be the Chief Justice's main criticism).

    That being said, the Court speaks as an institution. They discuss what they meant by their precedents even if none of the Justices are the same individuals and even if the author of the opinion is dissenting and explicitly stating that he didn't mean that. I think the Solicitor General's Office would prefer to speak of itself as an institution in the same way, which is why the office can change its mind when the people in the office get replaced. I think the whole thing is dumb, but Roberts is essentially guilty of doing the same thing if you think about it.

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