Supreme Court Test for Biden: How Boldly to Disavow Trump’s Agenda

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Supreme Court Test for Biden: How Boldly to Disavow Trump’s Agenda


“The Obama administration swept into office following eight years of Republican rule, and ample areas existed for revision and change,” Mr. Dreeben wrote. “But President Obama’s solicitors general took a highly restrained approach to reversing the positions of their Bush predecessors. During President Obama’s first term in office, no cases featured overt reversals of positions taken in the Supreme Court.”

The Trump administration took a different approach, Mr. Dreeben found. It flipped positions in four major cases in a single year in its first full Supreme Court term, including ones on workers’ rights and voting rolls.

“The reversals were abrupt and appeared strikingly at odds with institutional norms,” he wrote. But they were presented candidly as a product of a change in administrations and, with one exception, were not the subject of discussion when the cases were argued.

“Why so little comment compared to the Obama-era changes?” Mr. Dreeben asked. “Perhaps the muted response reflected the court’s acceptance that ‘of course’ a new administration will take new views.”

“Or perhaps,” he wrote, referring to the solicitor general’s office by its initials, “some justices simply agreed with O.S.G.’s new positions, while others wanted to engage with those positions on the merits rather than shadowbox with O.S.G. But a third possibility exists: O.S.G.’s change of position on its interpretation of the law, if explained candidly, is simply not worthy of comment to the court.”

The most pressing question for the Biden administration for now is whether it should change the government’s position in the latest challenge to the Affordable Care Act. In a brief filed last year, the Trump administration told the justices that a revision to one provision of the law meant that the entire statute must fall. That is, of course, at odds with President Biden’s support for the law.

In a recent public conversation webcast by Georgetown University’s law school, Paul D. Clement, who was the solicitor general in the George W. Bush administration, and Neal K. Katyal, who was the acting solicitor general in the Obama administration, agreed that the case, which was argued in November, was a promising candidate for a change in positions.



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