How a Trump Justice Department could shift legal positions at the Supreme Court
when Supreme Court In arguments scheduled for December, the justices will hear from the Biden administration’s top lawyer, who will urge them to strike down laws banning hormone therapy in nearly half of the states. transgender minor.
In January, President-elect Donald Trump’s New Deal lawyer The Justice Department will have to decide whether the federal government still believes the laws are unconstitutional.
How to handle the cases pending before the Supreme Court is always one of the most important issues for the new presidential administration. This is a difficult task. The U.S. is a party to 21 of the 45 cases the Supreme Court has agreed to hear during its current term, which begins in October, including cases related to certain treatment of transgender youth. Among many other issues, the Biden administration outlined its views on legal matters.
In most cases, the Justice Department takes a predictable, even nonpartisan approach, such as routinely defending federal criminal prosecutions on appeal.
But other cases involve judgments that reflect the policy preferences of the new administration.
In addition to the transgender cases, many others have touched on a hot-button issue: Biden administration backs a federal rule ghost gunwhich is a weapon that people can buy in bulk and assemble at home; it opposes a lower court blocking a Texas law that requires people who visit pornographic websites to prove they are adults; and it also defends the U.S. Food and Drug Administration Defended refusal to authorize sale of flavored e-cigarette products.
But Trump’s lawyers can change those positions. As Chief Justice John Roberts noted in 2022, “Generally speaking, the new administration certainly has the authority to do so.”
How does it work? It depends.
If the U.S. loses in a lower court, new lawyers can simply dismiss the appeal.
The Biden administration took this approach in a high-profile abortion case in 2020, following Trump’s decision to ban federally funded medical clinics from referring abortions. When lower courts rejected the policy, Trump’s lawyers took it to the Supreme Court, which agreed to consider the issue. But after President Joe Biden took office in early 2021, his legal team withdrew its appeal and the case was moved from the Supreme Court to the court calendar.
The Trump administration must now decide whether to withdraw appeals in transgender cases. Deputy Attorney General Elizabeth Prelogar, a Biden appointee who represented the government before the Supreme Court, argued that a state law banning minors from taking hormones “discriminates on the basis of transgender status.” Trump campaigned on “taking the madness of trans people out of our schools,” but he’s unlikely to see the issue the same way.
But if the Supreme Court appears to disagree with the Biden administration’s position during oral arguments early next month, Trump’s lawyers may consider staying the course. That prospect seems likely because the American Civil Liberties Union is prepared to pursue the case if the administration withdraws, making a withdrawal by the new Trump administration potentially futile.
The Trump administration’s handling of the “ghost gun” case is also unclear. During oral arguments in October, the justices said they had no objection to the Biden administration’s regulation of these homemade weapons, boosting gun control advocates. If the Trump administration objects to a rule on ghost guns that would subject these weapons to the same requirements as commercially sold guns, it could dismiss the case, leaving in place a lower court ruling blocking the rule.
By contrast, if the other side appeals a case that the United States won in a lower court, Trump’s lawyers’ approach may depend on different factors.
One factor is how the case is progressing. In January 2021, the Supreme People’s Court agreed to hear criminal sentencing cases. But before both sides filed briefs outlining their arguments in the case, the Biden administration told the Supreme Court that “after a change in administration, the Justice Department began reviewing the government’s interpretation of the law” and reversed course. The Supreme Court later appointed an outside lawyer to defend the Trump administration’s previous position.
Regardless, the Supreme Court’s caseload could change if Trump reverses Biden’s policies. 2017, Trump gave up during his first term Former President Barack Obama’s policy targeting transgender students’ bathroom use ended just before a Republican challenge to the guidance reached the Supreme Court.
Trump’s new lawyers will have to make strategic choices against this backdrop.
Some may involve how the government’s interests are portrayed. The Supreme Court sometimes asks Justice Department lawyers to explain how pending rulings might affect the government. Some of the demands stand out, including the Honolulu Challenge, which aims to hold oil and gas companies accountable for the climate impact of their emissions.
Some options may not even result in any changes to the Supreme Court’s current docket. One of the government’s jobs is to ask the High Court to review upcoming cases. Trump’s new lawyers may withdraw — or simply never pursue — some of the appeals filed by the Biden administration.
