Under normal circumstances, when an election produces an administration of a different political stripe, the solicitor general plays a key role managing a wave of potential reversals on certain issues. As Biden replaces Donald Trump, however, it could look more like a tsunami.
In the short term, for instance, the solicitor general’s office is likely to notify the court of a new position in a blockbuster dispute concerning the future of the Affordable Care Act, defending the law rather than seeking to overturn it — but also in other cases tied to controversial Trump policies, some of which the Biden administration may attempt to rescind before the Supreme Court can rule on them.
Under the Trump administration, the solicitor general’s office was particularly aggressive defending a broad array of Trump’s policies in hot button areas such as immigration, religion and abortion, often asking the justices to jump in before an issue had made its way through the lower courts.
Biden has yet to put forward his nominee for the permanent job. The solicitor general is the person who traditionally represents the US government in cases at the Supreme Court and regularly jousts with the justices in their majestic red velvet lined chamber — or, as with current practice, over the telephone.
In the interim, Prelogar will be in the forefront. She is a veteran of the Office of Solicitor General having served as an assistant in the office and also worked recently as an adviser to former special counsel Robert Mueller during his investigation into Russian interference into the 2016 election.
Prelogar worked as a former clerk to Judge Merrick Garland, Biden’s nominee for Attorney General, as well as the late Justice Ruth Bader Ginsburg and Justice Elena Kagan. Biden has yet to nominate a full-time solicitor general, and once that person is confirmed, she will be the principal deputy.
“She’s a spectacular lawyer with impeccable integrity and is ideal for this role in the Department,” said Andrew Goldstein, a former top Mueller team prosecutor.
But while moving quickly, the Biden solicitor general’s office also must be careful so as not to irritate justices who expect the government to be an honest broker acting in the long-term interests of the United States, not on the particular whim of one president or another. The court treats government lawyers with special solicitude, but in turn, the justices expect a level of consistency even when an election triggers a change of party in the executive branch.
“The credibility of the office in great measure depends on the idea that judges actually believe that is what you are doing,” Kagan, who served as President Barack Obama’s solicitor general before her eventual elevation to the high court, said in 2018.
Kagan said the office made clear that its mission was supposed to serve the interest of the United States.
“I think changing positions is a really big deal that people should hesitate a long time over, which is not to say it never happens,” she allowed.
“It’s always a sensitive matter when the Solicitor General has to change positions,” Elizabeth Wydra, president of the progressive Constitutional Accountability Center said in an interview. “But Biden’s pick will have no choice but to do so in a number of high-profile cases.”
In the case of the Affordable Care for instance, already there are blue and red states lined up on both sides of the issue. But the Trump administration argued that the individual mandate is unconstitutional and that the entire sprawling law should fall — leaving the health care of millions in legal limbo.
It may only be a symbolic move that won’t change the outcome of the case, but the new solicitor general will likely make clear to the court that the administration believes the signature legislative achievement of Obama’s administration is on solid legal ground. The justices heard arguments on November 10.
Because the lawsuit was brought by Texas and other GOP-led states, rather than the Trump administration itself, the Biden Justice Department can change its stance but that wouldn’t result in the case becoming moot.
Border wall, immigration and health care on the docket
On February 22 the justices are scheduled to hear arguments concerning funding for Trump’s border wall. And on March 1 they are scheduled to take on Trump’s policy that mandates that non-Mexican asylum seekers stay in Mexico as they await hearings in the United States.
How the Biden administration and court will proceed is an open question. The President on Wednesday ended the national emergency that the Trump administration had used to divert money for the border wall. And it is suspending the program regarding asylum seekers.
The next day the court will consider a case concerning the Voting Rights Act.
Although not scheduled for oral arguments yet the court has also agreed to hear two cases concerning the Trump administration’s effort to allow states to impose work requirements in their Medicaid programs.
“Every cross-party transition raises these kinds of issues, but this one seems different in two respects,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “First, the court has an unusually high number of cases challenging the old administration’s policies on its docket this term, raising the specter that a number of those cases go away if and when the new administration rescinds them. Second, the Trump administration has been unusually aggressive in its litigation posture before the Justices — whereas the Biden administration may be inclined to move slower on high-profile, hot-button cases.”
Along with cases on the docket, the justices are also currently considering whether to take up additional cases linked to Trump — some of which might become moot after he is no longer in office. Cases that are currently pending concern Trump’s Twitter feed, two cases concerning whether he violated the Emoluments Clause of the Constitution, others concerning restrictions that bar family planning clinics that receive federal funds from making referrals for abortion as well as petitions related to immigration.
And there is an emergency petition arising from Trump’s personal lawyers who are asking the court to block the release of his tax returns to a NY prosecutor.
On his first day as president, Biden released several new executive actions and promised more to come. Critics are likely to race to court to try to stop them.
“The Biden administration should take a both/and approach to executive action and legislative priorities,” Wydra said. “There is a lot of damage from the Trump administration that can and should be addressed immediately through executive action — on police reform and immigration issues, for example — while simultaneously pushing Congress for broader and more permanent legislation,” she said.
Who’s in play for the permanent job
The solicitor general position needs Senate confirmation which often takes some time.
If Biden — perhaps thinking that he might get a Supreme Court appointment in the near term, perhaps from a retirement of Justice Stephen Breyer — wants to take a page from the Obama/Kagan playbook he could name someone like California Supreme Court Justice Leondra Kruger so as to prepare her for a potential seat on the high court. But Kruger may not want to leave a good job to face a bitter confirmation battle that might in short order lead to another battle for the high court.
No less than Chief Justice John Roberts once served as a deputy in the office. At his confirmation hearing in 2005 he spoke of the experience.
“I always found it very moving to stand before the Justices and say, ‘I speak for my country,'” he said.
For legendary Justice Thurgood Marshall, working as solicitor general was the “best job I’ve ever had