In late fall 2012, Joseph Palmore, then an assistant to the U.S. solicitor general, stood at the lectern in the U.S. Supreme Court fully prepared to argue about appropriate remedies in an employee-retirement dispute not on many radars as a must-watch case. He neither expected nor prepared for an annoyed Chief Justice John Roberts Jr.

In a footnote in its amicus brief in the case, US Airways v. McCutchen, the Solicitor General's Office noted that “upon further reflection,” the government's position had changed on the issue in the case. Now, the Labor Department secretary had a different view.

Roberts, apparently concerned about the government's new positions in two earlier cases, homed in on Palmore and the Employee Retirement Income Security Act, or ERISA, case. “It wasn't further reflection,” Roberts told Palmore at oral argument that morning in November. “We have a new secretary now under a new administration, right?”

Roberts continued: “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.” He added: “I found that a little disingenuous.”

Palmore, now co-chairman of the appellate and Supreme Court practice at Morrison & Foerster, apologized and continued his argument.

“This was a relatively obscure ERISA case,” he recalled. “We were citing a court of appeals amicus brief from 10 years before. Frankly, if we hadn't disclosed it, no one would have known about it, but the Solicitor General's Office takes its disclosure obligations very seriously. Going in, I didn't think that was a big deal or expect questions—certainly not to the degree they came.”

Palmore continued: “The chief took particular objection to the 'upon further reflection' phrase. Up until that time, the SG's office had often used that phrase when discussing changes in position. I don't think it does so anymore.”

Now, it's the Trump administration's switched positions that could draw scrutiny at the Supreme Court as the new term moves into full swing.

In two of the most closely watched cases of the new Supreme Court term—one involving class action bans in employee agreements, and the other challenging Ohio's voter purge process—the Justice Department under U.S. Attorney General Jefferson Sessions reversed positions of the Obama administration. Acting Solicitor General Jeffrey Wall was direct, telling the justices in each case, “after the change in administrations,” the department or office “reconsidered” the issue.

The U.S. solicitor general does not change litigating positions easily, said former George W. Bush Solicitor General Gregory Garre, chairman of Latham & Watkins' appellate and Supreme Court practice.

“Generally speaking, the Solicitor General's Office is reluctant as an institutional matter to switch positions in cases from one administration to the next, because it realizes that the office's credibility before the court is undermined if its briefs are viewed as being driven by political considerations,” Garre said.

Any recommendation to change positions on an issue or in a pending case, Garre said, would be considered by the solicitor general and career lawyers in that office, as well as any interested components in the department or other agencies. “That doesn't mean the Solicitor General's Office never switches positions,” said Garre. “It does, and has, and doing so may be effectively unavoidable in light of policy decisions made by other agencies or officials.”

Roberts, in the employment retirement case from 2012, told Palmore: “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.”

Recently confirmed U.S. Solicitor General Noel Francisco acknowledged the risk inherent in too many switches in a response to U.S. senators during his confirmation proceedings this year.

“Although there are times when it is appropriate for the United States to change litigating positions, I believe that, if the United States changes positions too often and without a sound basis for doing so, then there is a risk of undermining credibility with the courts,” Francisco told senators in a written response. Francisco said it would be appropriate for the United States to change its position “when the underlying policy at issue has changed.” Switching the position of the United States, he said, “should be done infrequently in order to foster continuity.”

In 2014, then-U.S. Attorney General Eric Holder Jr. shared a similar view. In reflecting on the Justice Department's earlier decision to no longer defend the federal Defense of Marriage Act, he said the decision was “not taken lightly.”

“Any decisions at any level not to defend individual laws must be exceedingly rare,” Holder said in remarks then. “They must be reserved only for exceptional, truly exceptional circumstances. And they must never stem merely from policy or political disagreements—hinging instead only on firm constitutional grounds.”

BIG CHANGES IN KEY CASES 

Will Supreme Court justices and other federal judges be concerned about or otherwise question the about-faces by the Trump administration? They will have numerous opportunities—and not in obscure cases.

Besides the employment arbitration and Ohio voting cases, the Justice Department in February abandoned the Obama administration position in a challenge to a Texas voter identification law, one of the strictest in the country. The Justice Department had fought the law for more than four years at every level of the judiciary, including the Supreme Court, claiming it was intentionally discriminatory. But the Sessions-led Justice Department withdrew its intentional-discrimination claim.

“I wasn't surprised by it, given it was Jeff Sessions and the Justice Department,” said Gerry Hebert of the Campaign Legal Center, a lead attorney in the Texas challenge and who testified against the confirmation of Sessions for U.S. attorney general. “While I wasn't surprised, I was surprised on an issue of intent that they had extensively briefed before and were a party to the lawsuit—not an amicus curiae. They were involved in the trial, put on witnesses, had an expert witness testify it was discriminatory intent—they paid big money for him to do that—and developed the record. The only thing that changed from 2013 to 2017 was Jeff Sessions became attorney general.”

U.S. District Judge Nelva Ramos of the Southern District of Texas noted the Justice Department's changed position, but rejected it.

In July, the DOJ had filed a brief arguing that Texas' revised voter ID law (SB 5) “eradicate[d] any discriminatory effect or intent in S.B. 14 … [and] le[ft] no ongoing violation of federal law for the United States to pursue or the court to remedy.” On Aug. 23, Ramos issued a permanent injunction against enforcement of S.B. 5 after finding, “the provisions of SB 5 fall far short of mitigating the discriminatory provisions of S.B. 14.”

In another example of a switched position, the Justice Department in March opposed the Consumer Financial Protection Bureau in a constitutional challenge to its single-director structure.

Up until then, the Justice Department had supported the Obama-era agency's structure, which blocks the president from firing the director at will. The U.S. Court of Appeals for the D.C. Circuit was weighing a decision at press time.

In July, the Justice Department reversed the Obama administration's position that Title VII of the 1964 Civil Rights Act protects against job discrimination on the basis of sexual orientation. The department filed a brief in the Second Circuit case Zarda v. Altitude Express that took a position opposite to the U.S. Equal Employment Opportunity Commission.

One of the appellate judges in the Zarda case noted the department changed its position after Donald Trump became president and unsuccessfully pressed Deputy Assistant Attorney General Hashim Mooppan on the decision-making process.

Second Circuit judges questioned Mooppan, who joined the Trump administration from the law firm Jones Day, over the government's brief—concerning, among other things, who was consulted inside the Justice Department. One judge asked if DOJ had signed off on the EEOC's brief, and Mooppan replied, “I don't think it's appropriate for me to speak to internal deliberations and internal processes.”

The Justice Department in October, rescinding Obama-era guidance, further said Title VII does not protect transgender employees in the workplace. A DOJ-wide memo from Sessions extended the agency's clash with the EEOC, which has held that civil rights laws do protect against gender-identity discrimination.

“I can't think of a flip-flop so brazen,” said David Lopez, a Washington-based Outten & Golden partner and former EEOC general counsel. “This endangers the quality of opportunity for Americans to fight discrimination. It's a brazenly political stance.”

POSITION CHANGES COULD LESSEN DEFERENCE 

But do these switches matter and what should a court do, if anything?

“In terms of the impact on the court, it depends on the circumstances, but mainly I think a change in position just negates any added sense of deference or respect an SG brief might otherwise enjoy before the court,” Garre of Latham & Watkins said. “That doesn't mean the justices won't read it, and that doesn't mean the court or individual justices won't be persuaded by the arguments in the brief. But the court is unlikely to view the brief as the sort of more neutral exposition of law and facts, as it might view the government's brief in other cases in which there has been no change in positions.”

In 2012 arguments in Kiobel v. Royal Dutch Petroleum, Justice Antonin Scalia called out then-Solicitor General Donald Verrilli Jr. on the Justice Department's about-face on a central issue in the case. Picking up on Scalia's comments, the chief justice told Verrilli, “Whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”

In the law review article “Presidential Maladministration,” Josh Blackman of South Texas College of Law suggested that when an interpretive position changes after an election, courts should be more skeptical and grant greater deference to the earlier, consistent position, adopted contemporaneously with the introduction of the statute.

“This approach is faithful to the technocratic vision of agencies, and more importantly, it eliminates the perverse incentive of rewarding presidents who read statutes in ways unthinkable to their drafters,” Blackman wrote.

Contact Marcia Coyle at [email protected].