Let's say that presidential administration "01" has been defending a challenge to a certain law (for example, a section of health law) at the appellate court level. The case proceeds to SCOTUS. Meanwhile, there is an election and presidential administration "02" hopes the law is taken down and does not want to defend it in court. What happens at SCOTUS? Consider also the possibility that the solicitor general changes as the administration changes (I think he does, but I'm not sure.)
When a presidential administration changes while a case is pending at the Supreme Court (SCOTUS), the new administration's approach to the case can vary depending on its priorities, including whether it wants to defend the law in question. Here's how the situation typically unfolds, including the role of the solicitor general:
The Role of the Solicitor General
- The Solicitor General (SG), often referred to as the "10th Justice," represents the federal government in Supreme Court cases.
- The SG is a political appointee, and a change in administration usually brings a new SG who aligns with the incoming administration's legal priorities.
Options for the New Administration (Administration "02")
Maintain the Existing Position:
- The new administration may choose to defend the law despite having a different policy stance, particularly if there are institutional or legal principles at stake.
- The SG can argue the case at SCOTUS as originally planned.
Change Legal Positions:
- The new administration may reverse the position of its predecessor.
- For example, it can file a supplemental brief informing the Court of its new stance and arguing against the law.
- This shift is not unprecedented but is uncommon and controversial, as it may signal politicization of the legal process.
Decline to Defend the Law:
- The new administration may refuse to defend the law, as seen in cases like United States v. Windsor (2013) when the Obama administration declined to defend the Defense of Marriage Act (DOMA).
- In such cases, SCOTUS may allow third parties, such as state attorneys general or members of Congress, to step in to defend the law. This ensures the case is properly adjudicated with arguments on both sides.
Attempt to Moot the Case:
- If possible, the new administration might take actions (e.g., issuing regulations or repealing parts of the law) to render the case moot. This depends on the specifics of the legal challenge.
What Happens at SCOTUS?
- Standing: The Court must first ensure that someone has standing to defend the law. If the new administration declines to defend, SCOTUS evaluates whether a third party has legal standing.
- Continuance of Proceedings: If a third party with standing steps in, SCOTUS proceeds with oral arguments and issues a decision based on the merits.
- Impact of Changing Positions: While SCOTUS will consider the new administration's brief, the Court ultimately decides the case based on its interpretation of the law and Constitution, not solely on the executive branch's opinion.
Precedents and Considerations
- United States v. Windsor (2013): The Obama administration refused to defend DOMA, but SCOTUS allowed the Bipartisan Legal Advisory Group of the House of Representatives to defend it.
- California v. Texas (2021): The Trump administration supported striking down the Affordable Care Act (ACA), but after President Biden took office, the administration defended the ACA's validity.
Key Takeaways
- The SG does change with the administration, and their approach can influence the federal government’s stance.
- SCOTUS proceedings are not automatically halted by a change in administration; the Court ensures proper legal representation and may allow third parties to defend the law.
- The Court prioritizes its role as the arbiter of constitutional issues over political shifts, ensuring that the legal question at hand is resolved.
Yes, the Solicitor General (SG) does go through Senate confirmation. The SG is a political appointee within the Department of Justice and is nominated by the President. Once nominated, the SG must be confirmed by a majority vote in the Senate before officially assuming the role. This process can create a delay, particularly during the transitional period between administrations, affecting the federal government's legal strategy in cases pending before SCOTUS.
Timeline and Impact of Administration Transition on SCOTUS Cases
November–January: Lame Duck Period
- During this period, the outgoing administration remains in power, and its appointees, including the SG, continue to represent the federal government unless they resign early.
- The SG and other legal officials may proceed with briefs and arguments based on the policies and priorities of the outgoing administration.
January 20: Inauguration Day
- After the new President takes office, they typically replace key officials, including the SG, Attorney General (AG), and other DOJ leadership.
- Career staff in the SG's Office (deputies and assistants) may maintain continuity during the interim but often follow broad directives from the new administration.
Delay in SG Confirmation
- The confirmation process for the SG can take weeks or months, depending on Senate priorities and political dynamics.
- During this time, an acting SG (usually a senior deputy in the SG's office) performs the duties of the SG. The acting SG may maintain the prior administration's positions or pivot to align with the new administration's policies, though significant changes might await the confirmed SG.
Impact on SCOTUS Cases
- Ongoing Cases: The new administration may reassess pending cases and decide whether to maintain, reverse, or decline the federal government’s position. This reassessment can include:
- Filing supplemental briefs to notify SCOTUS of a changed position.
- Requesting extensions to allow the new administration more time to formulate its strategy.
- New Cases: The new SG or acting SG may influence decisions on whether to appeal cases to SCOTUS or allow lower court rulings to stand.
- Ongoing Cases: The new administration may reassess pending cases and decide whether to maintain, reverse, or decline the federal government’s position. This reassessment can include:
Examples of Transitional Impacts
- United States v. Texas (DAPA Case): After President Trump took office, the administration reversed the Obama-era policy on Deferred Action for Parents of Americans (DAPA), rendering the case moot.
- Affordable Care Act Cases: The positions of the federal government shifted between the Obama, Trump, and Biden administrations, leading to changes in litigation strategy during transitions.
Key Considerations
- Continuity vs. Change: While the SG's office provides institutional continuity, significant policy changes typically require direction from political appointees.
- SCOTUS Timing: If critical deadlines for filings or oral arguments fall during the transition period, the acting SG’s decisions may have outsized importance.
- Third-Party Defense: In cases where the new administration declines to defend a law, SCOTUS often allows third parties with standing to step in.
Conclusion
The SG's Senate confirmation adds a layer of complexity during transitions, leaving acting officials to manage high-stakes SCOTUS cases in the interim. The transitional period can have substantial effects on the federal government’s litigation strategy, particularly for cases tied to contentious or high-profile laws.
