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 The purpose of this letter is to notify the Court that the previously filed brief no longer represents the position of the United States.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.

Comments

[SRG2]

The SG can't actually say anything to the Court, at least publicly

Is Josh suggesting that the SG might contact justices privately?

[David Nieporent]

Yeah, I didn't understand what he was saying either. Ex parte communications? Why can't the SG say something to the court publicly?

[LawTalkingGuy]

I mean it’s sort of a fake problem that the Court and DOJ have created for themselves where they keep the fiction that the “United States” or its executive agencies, have consistent positions and interests across administrations. SCOTUS could just create special allowing the SG to withdraw briefs/arguments prior to decisions being issued if the admin changes. Or to submit supplemental briefs. Or the SG, like you suggest, could just tell the court via motion or notice of a position change. If the court balks or strikes…the SG can just keep doing it until the court accepts the practice. Wouldn’t be the first time lawyers kept hammering on something until the court acquiesced.

But of course Josh wittingly or unwittingly alludes to the most unethical approach. He just doesn’t understand professional responsibility.

[circleglider]

(Deleted)

[F.D. Wolf]

[JoeFromtheBronx]

VanDerStok

[circleglider]

In a case like VanDerStok, couldn’t the new administration moot the case, either by repealing the rule at issue, or reaching a settlement with the plaintiff?