Elena Kagan, dean of the Harvard Law School.
During oral arguments Dec. 9, Assistant to the U.S. Solicitor General Toby Heytens told the Supreme Court that police can legitimately frisk someone on the street on the mere suspicion that the person is armed and dangerous.
Justice John Paul Stevens was startled. The traditional Court view has been that under the Fourth Amendment, an officer must also believe a crime is afoot before a pat-down search can begin.
"May I ask you if the Justice Department has ever taken this position before?" Stevens asked politely. "It's a rather extreme position."
Heytens said the department had not taken that stance before.
He could have added that the department might not take the position again.
Court-watchers point to this exchange in Arizona v. Johnson as a marker of the kind of case where Elena Kagan could make a significant difference in how the government presents itself to the high court. Kagan is President Barack Obama's pick as the next solicitor general; her confirmation hearing comes later this month.
More so in this transition than others in the past, the Obama administration and its predecessor may prove to be at odds on key legal issues, most visibly on policies toward detainees and wartime powers.
The administration has already asked for more time to formulate its position on the case of Ali al-Marri, a Qatari national legally in the United States, held as an "enemy combatant" in a U.S. military brig. Former Solicitor General Gregory Garre defended his detention in a case the Court will hear this term.
But on a range of other cases from criminal law to voting rights, Kagan may also find herself more torn than recent predecessors between past and future government positions. In the Arizona case, for example, if the issue came up again, Kagan would not likely repudiate the Bush position outright, or suddenly side with the defendant Lemon Johnson.
But she could submit a more limited brief, or she could just stay on the sidelines. The United States was not a party in Arizona v. Johnson, after all, and has the option of sitting out state criminal cases.
"As with some of the cases on executive power, a different solicitor general might conclude it's not appropriate to argue for the broadest possible ruling," says Mayer Brown partner Andrew Pincus, who argued for the defendant in the Arizona case. The Court ruled for Arizona Jan. 26, but steered clear of the SG's argument, confining its ruling (pdf) to roadside car stops, where police traditionally have more leeway to search.
Conservative groups are already anticipating the kind of shift Pincus foresees.
"I think we might not see the new solicitor general asking for argument time in a case like Arizona's," says Lauren Altdoerffer, a lawyer with the law enforcement-oriented Criminal Justice Legal Foundation, which filed a brief on Arizona's side.
In other cases, Kagan might be more emphatic than the Bush SG's office was. Garre defended Section 5 of the Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Mukasey, a potential civil rights landmark. But with Obama's embrace of voting rights advances during the campaign, election law expert Rick Hasen at Loyola Law School in Los Angeles says an Obama SG "might offer a stronger defense."
Pincus also says "changing positions is not the only way" an administration can advance differing legal views. It can alter the underlying program or rule being challenged. In the al-Marri case, for example, one way to soften the break with Bush administration positions before the Court would be to wipe out the case altogether -- by deporting him or removing him to the civilian legal system.
It is an unquestioned tradition, an article of faith, that because of the solicitor general's special relationship with the Supreme Court, the arrival of a new administration of a different party does not -- must not -- mean a sudden shift in positions before the Court.
For one thing, the Court seems to crave consistency from the solicitor general. In the early part of the 20th century, Chief Justice Edward White told then-Solicitor General John W. Davis, "If you say that something happened in 1898, and the next time you say it happened in 1888, why sir, it's just as if you'd stuck a knife in me."
But why can't an administration show a different face to the Court when the White House changes parties?
Retired Deputy Solicitor General Lawrence Wallace, a modern-day custodian of the office's traditions, harrumphs at the question. "You don't file a brief that says, 'There's been an election, and there's a change in jurisprudence!' " says Wallace, who lived through transitions since arguing his first case in 1968. "The Court is very reluctant in its approach to the law to blatantly follow the election results back and forth."
The Court relies on the solicitor general, Wallace says, for an honest assessment of the meaning of laws and the impact of cases on government programs and on society -- an assessment that does not depend on who won the election and who appoints the solicitor general.
Yet even Wallace acknowledges that there are ways a new solicitor general can change course -- slightly. The SG makes hundreds of strategic decisions about which lower-court decisions the government should or should not appeal to the Supreme Court, which can accelerate -- or derail -- an issue and help shape the Court's docket to an administration's taste.
But when a case is granted and the Court looks to the solicitor general's office for its measured views, says Wallace, "The dialogue is with the Court. And the Court has traditions that have to be honored."
