The Volokh Conspiracy

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After 5 Relists, SCOTUS Grants Cert in Puerto Rico Case Biden SG Will Probably Switch Positions On

In September, candidate-Biden tweeted that he would not support the Trump Administration's position before the Supreme Court


In September, Acting Solicitor Jeff Wall filed a cert petition in United States v. Vaello-Madero. This appeal from the First Circuit presented the question of whether Congress violated the Fifth Amendment by excluding Puerto Rico from a social security program. At the time, then-candidate Biden tweeted that "This ends when I'm elected President." In other words, his administration would not take this position.

The briefing concluded on November 24, and the petition was distributed for conference on December 11. The case was then relisted five times. Finally, it was granted on February 26. Usually when a case is relisted several times, a Justice is working on a dissent from denial of cert. But here, after percolation, there was apparently enough support for a grant.

It is also possible that the Court was waiting for Acting SG Elizabeth Prelogar to withdraw the cert petition. Amy Howe observed at SCOTUSBlog:

Last month, Democratic lawmakers and religious leaders urged President Joe Biden to withdraw the lawsuit and give Puerto Rico residents access to SSI benefits, but Biden's acting solicitor general, Elizabeth Prelogar, did not take any action in the case after replacing Wall. The justices granted the government's petition on Monday; absent any further developments, the case will likely be scheduled for oral argument in the fall.

But that petition was not withdrawn. And the Biden administration will now have to reverse its position.

In rare cases, the Solicitor General will decline to defend a lower-court judgment. But usually in those cases, the losing party petitioned the Court for review. Here, the SG of one administration petitioned the Court for review, then the SG of another administration will agree with the lower-court decision.

As a result, the Court may appoint an amicus to defend the position taken by the SG's former cert petition. Or the Court could DIG the case altogether.