Recent oral arguments in which Chief Justice John Roberts Jr. challenged certain practices by the Office of the Solicitor General have left some court watchers scratching their heads and wondering whether they are isolated incidents or symptoms of a growing problem.
A number of veterans of the office lean more toward the former explanation than to the latter, and they note that Roberts may be particularly sensitive to the office’s operation because of his own experiences as principal deputy solicitor general during the George H.W. Bush administration.
“I don’t see any new or emerging problem or lack of respect, but rather a reflection of the fact that the chief justice, along with Justice [Samuel] Alito and Justice [Elena] Kagan, know all of the inner workings of the office because they worked there at all levels: solicitor general, deputy solicitor general and assistant to the solicitor general,” said former assistant to the solicitor general Lisa Blatt, head of Arnold & Porter’s Supreme Court and appellate practice. “So there’s just familiarity there.”
Four incidents—two in just a seven-day period—have provoked chatter among court watchers and in the media.
Two weeks ago, Roberts chastised assistant to the solicitor general Joseph Palmore during arguments in US Airways v. McCutchen because the government’s brief, according to the chief justice, was less than candid in describing a change in position on the issue in that case. Roberts zeroed in on language in a footnote that said, “upon further reflection…the Secretary is now of [a different] view.”
“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,” Roberts said. “It’s not that the secretary is ‘now of the view’; there has been a change [in secretaries]. We are seeing a lot of that lately.”
A week later in Decker v. Northwest Environmental Defense Center, Roberts grilled deputy solicitor general Malcolm Stewart about when his office learned that the U.S. Environmental Protection Agency had issued a final rule that might moot the case being argued—one that was issued just three days before arguments.
Stewart said he knew it was a “strong possibility,” particularly by early November, when a rule was submitted to the Office of Management and Budget (OMB) for final approval. Although the SG’s office had urged the court not to grant review in the case because Congress and the EPA were working on solutions to the issue in the case and it had reminded the court in its subsequent briefs of an ongoing rulemaking, Roberts said, “Maybe in the future you could let us know when something as definite as that comes. There were 875 pages on the merits briefing in this case, and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.”
During arguments last term in Christopher v. SmithKline Beecham Corp., Roberts and justices Antonin Scalia and Anthony Kennedy challenged Stewart on the Department of Labor’s recent practice of using amicus briefs in litigation, instead of rulemaking, to change regulatory interpretations. Scalia called the practice “extraordinary.” Roberts asked Stewart if the SG’s office authorized the amicus brief on the issue in the Christopher case and whether that was the normal practice. Stewart said yes to both questions.
And in Kiobel v. Royal Dutch Petroleum, Roberts and Scalia grilled Solicitor General Donald Verrilli Jr. about the government’s change in position from previous administrations regarding whether the Alien Tort Statute can be used in U.S. courts to challenge conduct by foreign corporations in foreign lands. Roberts made clear that such changes in position compromise “whatever deference” the government deserves.
After examining each of the four incidents, Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center and a former assistant to the solicitor general, said, “I don’t think there is any emerging problem between the chief [justice] and the SG’s office regarding the office’s candor.”
In Kiobel, Gornstein said, the chief justice “simply said that deference is reduced when [the government's argument] reflects a change in position.” That is true about deference, he added, under Skidmore v. Swift & Co. And the later decision in the Christopher case, he said, expressed for the first time the rule that an agency interpretation of its own regulations voiced in an amicus brief will not be given controlling weight when it comes after a long period of agency nonenforcement. That is a new legal rule, he said, “which the SG will be sure to incorporate into his advice to agencies.”
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.