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The New York Times: Supreme Court Test for Biden - How Boldly to Disavow Trump’s Agenda

February 01, 2021

O’Melveny partner and former Deputy US Solicitor General Michael Dreeben spoke with The New York Times on his recently authored law review article, which discussed whether President Biden’s Justice Department would refute his predecessors’ legal positions, breaking away from precedent.

“In an office that prizes its reputation for credibility, consistency and independence, solicitors general of both parties have said they are wary of veering from positions staked out by their predecessors,” the publication wrote. “Justice Elena Kagan, who was President Barack Obama’s first solicitor general before joining the court, has said, for instance, that “a change in position is a really big deal that people should hesitate a long time over.”

The publication noted that Dreeben’s new law review article presented a dissenting view, which concluded that the Biden administration does not need to fear announcing bold reversals of stances taken by the Trump administration.

“The new administration should be not reluctant to give the court better views of what it thinks the law is because of undue concern about positional consistency,” Dreeben said. “The court will understand that new administrations have new views, particularly coming on the heels of the Trump administration, which in many ways pressed a radical vision of its jurisprudential agenda on the court that a successor administration is entitled to push back on.”

Dreeben’s piece for The Yale Law Journal compared the Obama administration’s rare reversals to the Trump administration’s frequent ones.

“The Obama administration swept into office following eight years of Republican rule, and ample areas existed for revision and change,” Dreeben wrote. “But President Obama’s solicitors general took a highly restrained approach to reversing the positions of their Bush predecessors. During President Obama’s first term in office, no cases featured overt reversals of positions taken in the Supreme Court.”

The Trump administration, by contrast, reversed positions a number of times, but the shifts were presented candidly as a product of a change in administrations and, with one exception, were not the subject of discussion when the cases were argued, he observed.

“Why so little comment compared to the Obama-era changes?” Dreeben asked. “Perhaps the muted response reflected the court’s acceptance that ‘of course’ a new administration will take new views.”

The New York Times subscribers can read the full article here.