Originally published on April 20, 2021 on WLF’s Forbes.com contributor page.
Last month, Bloomberg recognized that President’s Biden Administration is on pace to change position at the Supreme Court more than President Trump’s Administration did in in his first year in office. Unsurprisingly, many left-leaning attorneys strongly objected to the Trump Administration’s decision to change positions. But those same people have applauded the Biden Administration’s decisions to change positions. The media has also been silent about these recent flip-flops while the Trump Administration’s pivots were on the front page of websites and newspapers.
The arguments for treating the two administrations differently don’t pass the laugh test. For example, some argue the Biden Administration is taking positions consistent with precedent. But this is simply not true. For example, the Biden Administration changed positions on whether California can require charities to disclose donor lists. The position advanced by the Biden Administration defies well-settled principles about freedom of speech. The new position is more like that taken by Chinese courts than American courts.
The case also shows a new tactic by the Biden Administration. The Trump Administration was never afraid to acknowledge the United States’s position—even if it was an extreme position. But the Biden Administration is taking a different approach. It is trying to hide its extreme positions. For example, in the disclosure case, the United States’s brief appears to argue for a middle ground because it urges vacatur and remand. Yet a deeper dive shows that the Biden Administration did not take a middle position. Rather, the request for remand was just an attempt at hiding the extreme position arguing that exacting scrutiny does not apply to the disclosure requirement.
The bigger concern is what the Biden Administration did in an important sentencing case. The Biden Administration’s brief was due on March 15. This was over four months after the November election. Yet it was not until the due date that the Biden Administration informed the Supreme Court that it would not file a brief in the case. This affected the petitioner and the Court. The case was scheduled for oral argument five weeks later; the last argument session of the term. But this could not happen because of the Biden Administration’s delayed notice to the Court.
Why not push the case until the Fall then? The answer was simple: The case will become moot if not decided sooner. So the Court was put in a real bind. Luckily for the petitioner, the Court refused to allow the gamesmanship. It appointed an amicus to defend the judgment below and ordered a rare May oral argument so that it can render a decision before the case becomes moot. The Biden Administration then realized that its ploy failed. So it moved to file a brief forty-seven days late. This is unprecedented in recent Supreme Court practice.
Media coverage of the transition has dutifully reported that the Biden Administration has changed how the Department of Justice operates. This is true to an extent; but it’s not in the way you think. The Biden Administration has decided to throw out more norms than the Trump Administration ignored. All in the name of politics. The narrative that the Biden Administration is not acting politically before the Court is just wrong.