Election Threatens to Upend Biden Battles at US Supreme Court

The US government’s position could flip in disputes over health-care treatments for transgender minors and federal regulations for build-at-home “ghost guns” pending before the US Supreme Court if Donald Trump gets elected.

It’s not uncommon for a new administration to come in after an election and want to reverse course in litigation their predecessor pushed, especially if the case centers on a hot button social issue, lawyers and legal scholars say. It’s a pattern the justices have recognized and been irritated by in the past.

“Almost always there’s some of that that goes on and with Trump, I expect more than the average amount,” said Paul Bender, an Arizona State University law professor who served as principal deputy solicitor general during the Clinton administration.

Case Argued

The transgender rights and ghost-gun cases are seen as potential targets given their obvious relationship to the broader conservative legal movements, which have been pushing for deregulation of guns and anti-transgender policies, said Thomas Wolf, director of democracy initiatives at the Brennan Center for Justice.

In United States v. Skrmetti, the Biden administration is fighting a Tennessee law that bans medical treatments for adolescents with gender dysphoria, arguing it unconstitutionally discriminates against transgender kids. Since arguments are scheduled to be heard before Inauguration Day on Jan. 20, any change in the government’s position would come after the case is already fully briefed and argued, making it unclear what would happen next.

“Process wise it’s a bit of a mess,” said one lawyer, who asked not to be named because they argue before the court.

Though the original case challenging the law was brought by three transgender minors, their parents and a doctor, the court only agreed to hear an appeal from the government, which had intervened in the case.

“It’s possible that the reason they only granted the government petition was so that if the government changed its position, the case would go away,” said the unnamed lawyer.

The federal government’s attempt to keep regulations for ghost guns on the books in Garland v. VanDerStok is a dispute that’s already been fully briefed and argued. But a Trump administration could still change the government’s position and try to moot the case by rescinding the regulation through the rulemaking process once in office.

The court would probably put the case in abeyance and then vacate it if and when the rule is rescinded, the unnamed lawyer said.

Some legal scholars say it would be extraordinary to see the government change positions in a case that’s already been submitted.

“I think the administration would have to come in and request to file supplemental briefing,” said Elizabeth Slattery, director of constitutional scholarship at the Pacific Legal Foundation, a public interest law firm that supported cases last term undercutting the power of federal regulators.

The Biden administration didn’t make that request in 2021 when it changed the Trump administration’s position in a challenge to the Affordable Care Act three months after the case was argued. That was because Democratic states stepped in to defend the law in California v. Texas after the Trump administration refused.

When Deputy Solicitor General Edwin Kneedler told the court the United States no longer believed the ACA is unconstitutional, he said the government wasn’t requesting additional briefing “because other parties have fully briefed both sides of the questions presented.”

The court ultimately rejected Republicans’ attack on the law in a 7-2 decision that June.

The Biden administration is again defending the ACA. This time against a challenge to its preventative care coverage requirements. Unlike the disputes over difficult to trace ghost guns and transgender rights, the court has not yet agreed to hear the government’s appeal of a Fifth Circuit decision invalidating the structure of a board Congress tasked with recommending which services insurers should cover free of charge.

This is a case where it’s possible to see a change in position, said Andy Pincus, a partner at Mayer Brown LLP, who filed a brief on behalf of public health professionals in support of the government.

Other disputes involving the EPA that the court has already agreed to hear are also potential targets of a Trump administration, Wolf said. The challenges center on whether fights over certain clean air regulations can be heard by regional circuit courts.

‘Further Election’

Position flips in cases involving the federal government happen with enough regularity that it’s joked about in the solicitor general’s office.

Instead of “upon further reflection,” which is the common phrase the government’s attorney uses to alert the court of a change in position, “I’ve heard people from the SG’s office make a joke and say ‘upon further election,’” Slattery said.

“From what I’ve seen, it looks like the SG’s office has kind of moved away from using that phrase,” she said, noting some of the justices have questioned its use.

Justice Sonia Sotomayor in 2018 seemed to criticize the Trump administration for urging the court to overturn a precedent that allowed public sector unions to collect fees from non-union members when the Obama administration had argued in a prior case that it should be upheld.

“Mr. General, by the way, how many times this term already have you flipped positions from prior administrations?” she asked Solicitor General Noel Francisco pointedly during the arguments in Janus v. American Federation of State, County and Municipal Employees.

Francisco admitted the Trump administration had revised the government’s position in three cases so far.