Gornstein also saw no deeper message in the chief's comments in the U.S. Airways and Decker arguments. In U.S. Airways, he said, "His concern was that the government's brief gave the impression that the same secretary who made the initial decision changed her mind, when in fact a new secretary changed the position. I actually did not read the government's brief to give that misimpression, but I can see how the chief justice did. I would expect future briefs to make sure this kind of misunderstanding does not arise."
And in Decker, Gornstein said, "From what I know, the fact that something reaches OMB is not any indication that a regulation is going to be issued at all, much less that it will be issued in the near future. So I am not sure what would have been gained if the SG had notified the court that the regulation had reached OMB. My suspicion, though, is that, in light of the chief's concern, the SG will, in the future, routinely notify the court of any public information tracking the progress of a regulation that bears on the case before the court."
Another former assistant to the solicitor general, David Frederick of Washington's Kellogg, Huber, Hansen, Todd, Evans & Figel, noted, "Viewed over the sweep of the past three decades, there have been some shifts in legal position between administrations of different parties, but the most notable ones actually have been by the Reagan and Bush II administrations. The 'shifts' undertaken by the Obama administration SG's office have been far more subtle and evolutionary than some taken under President Bush."
Frederick called "an especially stark example" the Bush administration's 180-degree reversal of position from decades-long administration positions on pre-emption in pharmaceutical cases. "The court greatly benefits from explanations about changes of position from one administration to another, and the more that change reflects different legal circumstances or developments than political ones, the more persuasive most justices will find it," he said.
Looking at the Decker comments by the chief justice, Frederick said the issuance of regulations during a pending case has sometimes created frustration among justices. "It may be that the law clerks are less attuned to alerting the justices at the certiorari stage about pending regulations and their potential impact on a case than they should be," he suggested. "The SG's office is usually very scrupulous about noting such developments in certiorari opposition briefs."
Verrilli declined to comment.
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