The Volokh Conspiracy

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Chief Justice Roberts and Justice Barrett Ask Deputy SG Feigin About Switch in Position for Terry v. U.S.

Roberts: "I wondered what standard your office applies in deciding when to take that step. Is it just that you think the position is wrong and you would have reached a different one?"


In April, I wrote about the Biden Administration's decision to switch positions in Terry v. United States. I speculated that the Justices might ask about about this presidential reversal. Chief Justice Roberts did not disappoint.

Deputy Solicitor General Feigin argued on behalf of the United States. His very first question of the box came from the Chief:

CHIEF JUSTICE ROBERTS: Thank you, Deputy General. In this case, the Department switched its position from being the Respondent to supporting the Petitioner. Prior administrations have done that. Subsequent administrations are going to do that. But I wondered what standard your office applies in deciding when to take that -that step. Is it just that you think the position is wrong and you would have reached a different one?

Feigin gave an answer that was, I'm sure, well-rehearsed:

MR. FEIGIN: Well, Your Honor, I don't know that we have a specific set of procedures or guidelines that --that I could kind of publicly share.

So there is a procedure, but it's private. Fascinating answer. Then Feigin explained that the position taken now is more "sound" that the Trump Administration's position:

Let me just say that in this case, very much due consideration was given to this within the Department, and the Department determined that the prior position wasn't as sound as the position that we're advocating now, and I think we focused on --on three factors.

Justice Barrett also chided the government for switching positions so late in the game:

JUSTICE BARRETT: Okay. And then my other question is, did you view the government's prior position --you know, when you changed -you changed pretty late. It was the day your brief was due. Would you characterize it as implausible, or is it your position that the statute is ambiguous and that in light of the purposes of the First Step Act and the Fair Sentencing Act that yours is the better interpretation?

Feigin would not say the prior position was "implausible." He stuck with "unsound."

MR. FEIGIN: The latter, Your Honor. I don't think we were taking an implausible position before, although we think it's ultimately unsound for the reasons in our brief and primarily the reasons I was just explaining to the --I was trying to explain to the Chief Justice.

I was recently advising our High School oral advocates on how to gently, but effectively criticize opposing counsel. I said don't use words like "wrong" or "false." That sort of language will turn off judges. I do like "unsound."

Adam Mortara, arguing as amicus, got in a very good dig at the government's flipped positions. Enjoy this colloquy with Justice Breyer, which segued right into Justice Alito's time.

JUSTICE BREYER: If I'm correct, why did the government argue what it argued? They knows these as well as I do, probably better.

MR. MORTARA: Your Honor, I am here to explain many things. The behavior of the United States Government in this case is not one of them.


I suspect there would have been (laughter) in the Court for that line.

Oh, and by the way, we still do not have a Solicitor General nominee. Oral arguments are over for the Term, and a nominee is not even announced. I really do not understand this delay. Something very strange must be going on behind the scenes.