Two cases coming before the Supreme Court have the potential to prove troublesome for the Trump administration, if recent criticism in similar cases by the justices is anything to go by, The New York Times reported on Monday.
In the two cases, one on workers’ rights and the other on voting polls, the new administration has taken the opposite position of the previous one. These changes in legal positions apparently prompted by politics have previously tested the patience of the justices.
Such instances during the Obama administration provoked some of the testiest exchanges at oral arguments with the justices, perhaps best summarized by Chief Justice John Roberts Jr. remarks that “Your successors may adopt a different view. Whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”
The chief justice also scolded the government lawyers in a separate case a few months later in which they also switched positions, saying “We are seeing a lot of that lately,” and called the Obama administration’s advocacy “a little disingenuous.”
Such dramatic changes in positions erode the reputation for continuity, credibility and independence of the Solicitor General’s Office, the unit of the Justice Department unit that represents the federal government in the Supreme Court, according to the Times.
In the case on workers’ rights, the Trump administration favors enforcing provisions in arbitration agreements that prevent employees from banding together to take legal action over workplace issues. This position is directly opposite to the one taken by the Solicitor General’s Office, representing the National Labor Relations Board, last September during the Obama administration, in which seven of the board’s lawyers signed that brief.
When the Trump administration reversed course, the board lawyers did not sign the new brief and instead issued a press release stating that “the acting solicitor general of the United States authorized the National Labor Relations Board to represent itself in the Supreme Court.”
South Texas College of Law Prof. Josh Blackman wrote in a law review article that changes in the government’s legal positions are “increasingly problematic.”
Although he acknowledged that it is only natural that administrations will disagree with each other, something could be wrong if they can read the same federal statutes in opposite ways. He stressed that “Where an incoming administration reverses a previous administration’s interpretation of statute simply because a new sheriff is in town, courts should verify if the statute bears such a fluid construction.”