WASHINGTON – Supreme Court Justice Elena Kagan and lawyer Paul Clement often find themselves on opposite sides of issues he argues and she helps decide at the high court. But at a recent event in Washington, Kagan and Clement agreed new administrations should be sparing in changing their predecessors’ positions in pending Supreme Court cases.
They were speaking from experience. Kagan and Clement both served as solicitor general, the head of the office that represents the federal government before the Supreme Court.
Kagan, President Barack Obama’s first solicitor general, and Clement, who headed the office under President George W. Bush, agreed that the office’s role should be largely nonpartisan. The presumption is that the government’s position isn’t going to change from administration to administration, Clement said. That’s because the office is looking out for the long-term interests of the United States.
So when the office does decide to switch its position — as it has several times since President Donald Trump took office — people notice. One example: a flip to side with businesses in a case about whether they can prohibit their workers from banding together in disputes over pay and conditions in the workplace.
“I think changing positions is a really big deal that people should hesitate a long time over, which is not to say that it never happens,” Kagan said. Every administration changes some positions, she said, but added that the “bar should be high.”
Kagan didn’t talk about the Trump administration’s switches directly, but she said when she was solicitor general she was told “you were supposed to think long and hard and then you were supposed to think long and hard again before you changed anything.” Clement, who has made more than 90 Supreme Court arguments, said that if “both administrations are looking out for the long-term interests of the executive branch,” positions “really shouldn’t change that much.”
Earlier this term, Justice Sonia Sotomayor called out the Trump administration on its flip-flops.
“By the way, how many times this term already have you flipped positions from prior administrations?” Sotomayor asked Solicitor General Noel Francisco during a case in February about fees paid to unions.
Three, Francisco answered. By the end of this term’s arguments in April, the answer would be at least four.
On Monday, the Supreme Court ruled 5-4 in the first case of the term that involved a flip, the case involving workers joining together in disputes over pay and workplace conditions, a decision that affects an estimated 25 million non-unionized employees. The Supreme Court sided with the Trump administration and businesses.
Kagan dissented. Clement represented the winning side.
It’s the time of year when Supreme Court justices get asked to temporarily trade their judicial robes for graduation garb to speak at college and law school commencements.
“You know, at graduation ceremonies many people will tell you to go out and conquer the world and climb mountains and do great things. The truth is we are fortunate if we can conquer ourselves,” Justice Clarence Thomas said during a commencement address at Christendom College in Front Royal, Virginia, this month.
Thomas also spoke about his Catholic faith.
“This is a decidedly Catholic college and I am decidedly and unapologetically Catholic. It is this faith that has been the guiding beacon during some difficult and seemingly hopeless times even when I had turned my heart against it and turned my back on it,” Thomas said.
Justice Stephen Breyer will speak at New York Law School’s commencement at Carnegie Hall on June 1. Justice Sonia Sotomayor was to participate in commencement at the UC Davis School of Law, but recovering from shoulder surgery forced her to cancel.
Thirty-two cases remain undecided, including the term’s biggest, but it’s not too soon to be thinking about summer and the plum teaching gigs that come to those on the highest court.
At least three justices with long experience in the classroom are headed abroad this summer to teach at American law school programs after the court’s term ends in June. Justice Anthony Kennedy will do his customary stint in Salzburg, Austria, at the University of the Pacific’s McGeorge School of Law, where he is teaching a two-week course on freedom of expression in the United States.
Justice Ruth Bader Ginsburg will be in Rome for Loyola University Chicago’s summer law program. Ginsburg will talk about the court and Constitution, while her daughter and law professor Jane Ginsburg will participate in the program’s international art law course.
Justice Neil Gorsuch also will be in Italy, in Padua, where he and his former law clerk, Jamil Jaffer, will team up to teach two courses in national security law for George Mason University’s Antonin Scalia Law School.
Ginsburg was a law professor before joining the federal appeals court in Washington, D.C., in 1980. Kennedy and Gorsuch both taught regularly when they were federal appeals court judges, and Kennedy has spent almost every summer in Salzburg for the past 25 years.