Acting SG Asks SCOTUS To Hold Briefing Schedules For Pending Cases

The Solicitor General has filed briefs in three cases, currently pending on the docket. First, in Diamond Alternative Energy v. EPA, SG Sarah Harris asked the Court to hold the briefing in abeyance, with the petitioners opposing the motion. Second, in Department of Education v. Career Colleges and Schools of Texas, Harris asked the Court to hold the briefing in abeyance, with the respondents consenting. Third, in EPA v. Calumet Shreveport Refining, Harris asked the Court to hold the briefing in abeyance, with respondents opposing the motion.

The government's cert petition in Oklahoma v. EPA is pending now. The government asked to hold the briefing in abeyance. Again, the petitions who represent states and industry groups opposed.

I think in the cases where the government is the petitioner, the SG will move to withdraw the cert petition. And they may try to knock the other cases off the docket by seeking to modify rules.

These sorts of presidential reversals happen every time a new administration comes to town. I wrote about this topic in my article, Presidential Maladministration. In February 2009, the Obama DOJ withdrew a pending cert petition filed by the Bush Administration in New Jersey v. EPA. The Court granted the motion to dismiss the petition. In 2017, Gloucester County School Board v. Grimm fell off the Court's docket after the Trump Administration changed the Title IX regulations. And in February 2021, the Biden SG withdrew the Trump SG's brief in California v. Texas. And in April 2021, the Biden SG filed an out-of-time brief in Terry v. United States.

The trickier option is for cases already argued, and a decision is pending like Skrmetti and Van Der Stock. The SG can't actually say anything to the Court, at least publicly.

Update: The SG also filed a letter in Louisiana v. Callais, a voting rights case.

Following the change in Administration, the Department of Justice has reconsidered the government's position in these cases. The purpose of this letter is to notify the Court that the previously filed brief no longer represents the position of the United States. In addition, the United States is withdrawing its pending motion to participate in the oral argument.