During oral argument in Kiobel II, Justice Scalia asked the Solicitor General, “Why should — why should we listen to you rather than the solicitors general who took the opposite position and the position taken by Respondents here in other cases, not only in several courts of appeals, but even up here.”
General Verrilli answered, not too persuasively, “It’s my responsibility to balance those sometimes competing interests and make a judgment about what the position of the United States should be, consistent with existing law.”
Chief Justice Roberts was none too pleased with that response, and chimed in, “Your successors may adopt a different view. And I think — I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”
Today during oral argument in US Airways, Inc. v. McCutchen (11-1285), Chief Justice Roberts continued that theme when he seized upon a Deputy SG in a relatively mundane ERISA case, where the current Secretary of Labor departed from a position by President Bush’s Secretary of Labor.
CHIEF JUSTICE ROBERTS: Counsel, the position that the United States is advancing today is different from the position that the United States previously advanced. You make their point in footnote 9 of your brief. You say that in prior case, the secretary of labor took this position. And then you say that, upon further reflection, the secretary is now of the view — that is not the reason. It wasn’t further reflection. We have a new secretary now under a new administration, right?
MR. PALMORE: We do have a new secretary under a new administration. But that -
What was the offending footnote? In part, it read “Upon further reflection, and in light of this Court’s discussion of ERISA’s . . . the Secretary is now of the view that the common-fund doctrine…”
Tony Mauro noted that in the SG’s office, there is a running joke that ” the phrase “upon further reflection” used in briefs to indicate a change should actually be, “upon further election.”
The Chief is not pleased, noting that “we are seeing a lot of that lately.”
CHIEF JUSTICE ROBERTS: It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is now of the view — there has been a change. We are seeing a lot of that lately. 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, the secretary is now of the view. Tell us it’s because there is a new secretary.
Get used to it Chief. Four more years.
Tony observed that in addition to Kiobel, the Chief also took a similar tact in “last term’s Fair Labor Standards Act case Christopher v. SmithKline Beecham Corp., in which the government changed its view on the legal status of pharmaceutical salespeople. The court’s June 18 decision, which Roberts joined, highlighted the government’s shift and said the Labor Department’s new position was not entitled to deference.”
The Chief continued, and called the SG’s position “a little disingenous.”
MR. PALMORE: With respect, Mr. Chief Justice, the law has changed since that brief was filed nearly ten years ago in the Court’s review. CHIEF JUSTICE ROBERTS: Then tell us the law has changed. Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.
All while the Solicitor General was sitting in attendance…
Justice Stevens is fond of saying that when the Court’s precedents change, the only thing that actually changed was the “composition” of the Court. Much the same can be said about the administration in office–though the latter is elected, the former serve for life.
Prior to the election I queried what would happen to the DOMA litigation if Mitt Romney won. In short, probably a lot:
How would a change in administration affect this litigation?
Well presumably the House Republican group will drop out. But will Paul Clement argue anyway? A special assistant to the SG office? And will the changed administration affect any stated governmental interests? Will the new SG file supplemental briefs changing course? Will the new SG suddenly find that heightened scrutiny is not applicable? Will the new SG argue that some compelling interests his predecessor argued are not so compelling?
So generally speaking, how much deference is owed to the Solicitor general’s position?
In the past I have wondered about what deference is owed to the government’s assertion of its best interests in the context of constitutional rights. Last term in United States v. Alvarez, the government asserted that it could not build a database to house the recipients of medals of honor, and this justified their policy of criminalizing stolen valor. In the opinion, Justice Kennedy said that they should build the database, as a significantly-less restrictive means to combat the false speech. A few months after the opinion, the government started building that database. It seems to be online now at valor.defense.gov, and lists the recipients of the Medal of Honor and service crosses.
Relatedly, there are reports that the President considered putting together a manual to codify drone rules, fearing he may be booted out of office. Would such a policy really be binding, especially in light of Obama’s own “go it alone” approach to the unitary executive?
I wonder if the Court’s pushback will cause the SG to second-guess changing a prior position–or at least do so more persuasively?