Biden DOJ outpaces Trump DOJ for reversing US position in pending Supreme Court cases
The Department of Justice building in Washington, D.C. Photo from Shutterstock.com.
The Biden administration’s Department of Justice has changed positions in at least five cases before the U.S. Supreme Court, putting it on track to outpace reversals during the first full Supreme Court term under former President Donald Trump.
Bloomberg Law has the story.
“In just under two months,” Bloomberg Law reports, President Joe “Biden has flipped positions to defend the Affordable Care Act, side with union organizers in a takings case, reject a test put forth by the Trump administration in a voting rights dispute, support a California donor-disclosure law, and argue for a sentence reduction in a case on the new First Step Act.”
The Washington Post points to other changes. The former acting attorney general, Monty Wilkinson, has dropped the department’s zero-tolerance policy for illegally entering the United States; withdrawn guidance requiring prosecutors to charge the most serious, readily provable offenses; rescinded a policy allowing voter fraud probes before certification of election results; and dropped a lawsuit accusing Yale University of bias against Asian and white applicants.
Newly confirmed U.S. Attorney General Merrick Garland could make more changes, according to the Washington Post. He has suggested that he is open to pausing the federal death penalty and to using consent decrees to reform police departments.
Changes in legal positions can harm the credibility of the U.S. solicitor general before the Supreme Court.
Michael Dreeben, the longtime deputy solicitor general and now a lawyer at O’Melveny & Myers, told Bloomberg Law that the DOJ can do three things to manage the harm: Use sound judgment in deciding which policies to change, be frank when acknowledging the switch, and give a reasoned explanation for the decision.