How a Trump Justice Department could shift legal positions at the Supreme Court

When the Supreme Court convenes for arguments in December, the justices will hear from the top lawyer for the Biden administration, who will urge them to strike down laws in nearly half the states that ban hormone treatments for transgender minors.

In January, President-elect Donald Trump’s new lawyers at the Justice Department will have to decide if the federal government still believes those laws are unconstitutional.

How to handle ongoing cases before the Supreme Court is always one of the most consequential questions for a new presidential administration. It’s a big task. Of the 45 cases that the Supreme Court has agreed to hear for its current term, which began in October, the United States is party to 21 of them, including the case over certain treatments for transgender youth. In many others, the Biden administration has outlined its view of the legal issues.

In most of those cases, the Justice Department takes a predictable, even nonpartisan approach, such as by routinely defending federal criminal prosecutions on appeal. 

But other cases involve judgment calls that reflect the new administration’s policy preferences. 

In addition to the transgender case, many others touch on hot-button issues: the Biden administration supported a federal regulation of ghost guns, which are weapons that people can buy in pieces and put together at home; it opposed a lower court’s ban on a Texas law that requires people who access pornographic websites to prove they are adults; and it defended the Food and Drug Administration’s refusal to authorize flavored e-cigarette products for sale. 

But Trump’s lawyers can flip these positions. As Chief Justice John Roberts noted in 2022, “a new administration is of course as a general matter entitled to do that.” 

How does it work? That depends. 

If the United States lost the case in the lower court, the new lawyers can simply dismiss the appeal. 

The Biden administration took this approach in a prominent 2020 abortion case over Trump’s decision to bar federally funded health clinics from making abortion referrals. When a lower court struck down the policy, Trump’s lawyers brought it to the Supreme Court, which agreed to consider the issue.. But after President Biden took office in early 2021, his legal team dropped the appeal and the case was removed from the Supreme Court’s calendar.

The Trump administration will now have to decide whether to withdraw its appeal in the transgender case. Solicitor General Elizabeth Prelogar, a Biden appointee who argues on behalf of the government before the Supreme Court, has argued that state laws that keep minors from taking hormones “discriminate[] based on transgender status.” Trump, who campaigned on getting “transgender insanity the hell out of our schools,” is unlikely to see the issue the same way. 

But Trump’s lawyers may consider staying the course if it looks like the Supreme Court disagrees with the Biden administration’s position at oral argument early next month. This prospect seems likely because the ACLU is poised to pursue the case if the government drops out, making withdrawal by the new Trump administration potentially futile.

The Trump administration’s approach to the ghost-guns case is also unclear. At oral argument in October, the justices indicated that they had no issue with the Biden administration’s regulations on these do-it-yourself weapons, buoying the spirits of gun-control advocates. If the Trump administration opposes the regulations on ghost guns, which subject these weapons to the same requirements as firearms sold commercially, it could dismiss the case, which would keep intact a lower court ruling that blocked the rule. 

In contrast, if another party is appealing a case that the U.S. won in the lower court, the approach of Trump’s lawyers may depend on different factors. 

One factor is how far the case has progressed. In January 2021, the Supreme Court agreed to hear a criminal-sentencing case. But before the parties submitted briefs outlining their arguments in the case, the Biden administration told the Supreme Court that “following the change in administration, the Department of Justice began a process of reviewing the government’s interpretation of” the law and reversed course. The Supreme Court then appointed an outside lawyer to argue the Trump administration’s previous position.  

And regardless, the Supreme Court’s caseload may change if Trump rolls back Mr. Biden’s policies. In 2017, Trump, in his first term, dropped former President Barack Obama’s policy for bathroom use for transgender students right before a Republican challenge to the guidance landed at the Supreme Court, which brought an end to the case.

Trump’s new lawyers will have to make strategic choices against this backdrop.

Some may involve how to portray the government’s interests. The Supreme Court sometimes asks Justice Department lawyers to explain how a pending ruling might affect the government. Several of these kinds of requests are outstanding, including a Honolulu challenge that seeks to hold oil and gas companies accountable for the effects of emissions on the climate.

And some choices might not even result in any change to the Supreme Court’s current docket. One of the administration’s jobs is to ask the high court to review upcoming cases. Trump’s new lawyers may withdraw — or simply never pursue — certain appeals that the Biden administration teed up. 

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