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Nov. 30 — The Trump administration is likely to change direction in some pretty big U.S. Supreme Court cases.
But in the “vast majority” of cases, the new administration won’t make any changes, Pratik A. Shah, who co-heads Akin Gump Strauss Hauer & Feld LLP’s Supreme Court and Appellate practice in Washington, told Bloomberg BNA.
That’s in part because there is a reputational cost to changing litigation positions, he said. The justices themselves have previously expressed frustration with such changes.
But administrations are often willing to suffer the consequences in high-profile cases, Shah said.
For the Trump administration, that could mean a change in the federal government’s position on transgender rights, Shah said.
New administrations typically defend previous administrations’ positions, Shah said.
In part, that’s because the “interests of the government don’t change, by and large,” he said.
For example, Shah doesn’t expect to see any changes in the federal government’s position in criminal law cases currently before the high court.
Similarly, there will likely be few changes to the government’s position on foreign policy and national security, Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, told Bloomberg BNA.
Another reason administrations don’t typically change litigation positions is because there’s a “cost” to doing so, Shah said.
In administrative law cases that cost is “built into the doctrine,” Shah said. Changes to an agency position will be given less deference by the judiciary under long-established administrative law doctrine, he said.
But there’s a reputational cost too, he said.
The federal government’s legal positions, determined by the Department of Justice, are supposed to be based on the law—not politics, Shah said.
When the government changes its position solely because there is a new administration, it sends the opposite signal, he said.
Of course, Trump has frequently defied political traditions and norms. But Shah said the Trump administration is likely to follow this one of “adhering to the government’s litigating position in the majority of pending cases, especially at the Supreme Court level.”
That’s because “there is something different about DOJ, which has a strong institutional history—reinforced by an experienced and respected cadre of career attorneys—of maintaining certain positions” across administrations, Shah said.
Assuming the new U.S. Solicitor General is one with prior experience within the DOJ, they are likely to bring that same view, he said.
He acknowledged, though, that there may be greater variation in certain DOJ divisions, “such as civil rights and environmental enforcement, because the priorities of those Divisions will presumably change more dramatically than most others (such as the criminal and civil divisions).”
Though many of the administration’s positions may not change, new administrations are willing to take a reputational hit in high-profile cases, which, not coincidentally, are the most politically sensitive cases, Shah said.
For the Trump administration, that could include changes in cases dealing with affirmative action, abortion, immigration and contraception, he said.
Most immediately, the Trump administration may change course in a case dealing with transgender rights.
In Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. 10/28/16) (review granted), the Supreme Court has agreed to review a Department of Education letter saying that Title IX of the Education Amendments of 1972 requires that schools allow transgender students to use the bathroom that corresponds to their gender identity, not their biological sex.
That’s a position that the Trump administration could change on day one, Blackman said.
But that abrupt change could irk some of the justices.
In a handful of recent cases, the justices have expressed frustration with the federal government’s changed positions, Blackman said in a 2013 blog post.
During oral argument in U.S. Airways, Inc. v. McCutchen, Chief Justice John G. Roberts Jr. was not pleased with the government’s changed position, and noted that the court was “seeing a lot of this lately,” Blackman said.
Roberts later said during the argument it was “disingenuous” for the government to claim that the change was made because the government “reconsidered” its position.
“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,” and now has a new position; “tell us it’s because there is a new Secretary,” Roberts told the government lawyer.
Ultimately, however, any change in the government’s positions won’t make a huge difference, Shah said.
In every case, the court is trying to get to the correct legal rule, regardless of the federal government’s position, Shah said.
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