Under Trump, US government legal stance poised to shift at Supreme Court

By John Kruzel and Andrew Chung

Republican Donald Trump's return to the presidency is expected to precipitate a shift in the U.S. government's legal stance in major cases pending at the Supreme Court, including a closely watched dispute involving Tennessee's ban on gender-affirming medical care for transgender minors.

After Trump succeeds Democrat Joe Biden on Jan. 20, other big cases in which the new administration could change positions include ones involving the largely untraceable firearms called "ghost guns," nuclear waste storage, flavored vape products and securities fraud, according to legal experts.

Trump on Wednesday tapped Republican congressman Matt Gaetz as his nominee for attorney general. Trump has not yet announced his nominee for U.S. solicitor general, the Justice Department official who represents the government in Supreme Court cases.

"I expect that the Trump solicitor general will change positions in major cases before the Supreme Court," said Erwin Chemerinsky, dean of the University of California, Berkeley Law School.

"It happened in 2016 and it happened in 2020," Chemerinsky added, referring to transfers of power with a president of one party succeeding a president of the other.

The expected changes in positions by the new incoming administration may be a closer ideological fit for the Supreme Court's 6-3 conservative majority, which includes three justices appointed by Trump.

"I don't think that Trump administration switches will trouble this court too much. My guess is that most or all of the administration's switches will align with positions of a majority on the court, and that they'll be happy to have a solicitor general who puts those positions before them," University of Illinois Chicago law professor Steve Schwinn said.

The Supreme Court on Dec. 4 is scheduled to hear arguments in the Biden administration's appeal of a lower court's decision upholding Tennessee's Republican-backed state law banning medical treatments including puberty blockers and hormones for minors experiencing gender dysphoria. That is the clinical diagnosis for significant distress resulting from an incongruence between a person's gender identity and sex assigned at birth.

The Biden administration, which sued in an attempt to block the law, has argued that the ban discriminates against these adolescents based on their sex and transgender status, violating the U.S. Constitution's 14th Amendment equal protection guarantee.

"One would not see a Trump administration seeking to advance arguments that would protect the interests of trans individuals and trans children," Georgetown University law professor Michele Goodwin said. "That seems very inconsistent with the line of discourse that's come from Trump during his time of running as a candidate and also inconsistent with his prior service in office."

Trump's solicitor general also could reverse course on the Biden administration's positions in two cases defending regulatory agencies - appeals involving the Nuclear Regulatory Commission's authority to license nuclear waste storage facilities and the U.S. Food and Drug Administration's denials of various applications to sell flavored vape products.

A U-turn also could come in the Biden administration's support for shareholders in cases involving separate private securities fraud lawsuits against chipmaker Nvidia and Meta's Facebook social media platform.

"I think the Trump administration will be like other Republican administrations, in that they're going to be less regulatory than a typical Democratic administration, and that could mean changing positions in cases in which they are on the other side from some regulated industry," Cornell Law School professor Michael Dorf said.

'NATURE OF DEMOCRACY'

Such policy reversals at the Supreme Court are not uncommon when a Republican president succeeds a Democrat, and vice versa.

"The nature of democracy is that differences in political opinions can be expressed in this way," said Deborah Widiss, an Indiana University law professor who has written about this dynamic.

"As far as how the justices respond, I don't think that the mere fact of a switch should necessarily discredit the government's position. These are contested legal issues where there are arguments on both sides," Widiss added.

After Trump took office for the first time in 2017, his administration departed from legal positions advanced at the Supreme Court under his Democratic predecessor Barack Obama on issues from labor unions to in-house judges at the Securities and Exchange Commission to election law, Widiss noted.

Trump's first administration also rescinded a federal directive telling public schools to let transgender students use bathrooms matching their gender identity, prompting the Supreme Court to scrap plans to hear a case involving a transgender public school student in Virginia.

After Biden defeated Trump in the 2020 election, his administration reversed course on some of his predecessor's actions, especially concerning immigration. This prompted the Supreme Court in 2021 to scrap scheduled arguments in Trump's appeals defending his restrictive asylum policy and his plan to shift military funds to pay for the U.S.-Mexico border wall.

At the Biden administration's urging, the Supreme Court dismissed in 2021 litigation over another immigration measure devised under Trump that barred people deemed likely to need government benefits from legal permanent U.S. residency. Biden's administration issued a new rule in 2022.

TRANSGENDER ARGUMENTS

It remains to be seen how the Supreme Court would react to a Trump decision to reverse course in the Tennessee case.

A group of transgender adolescents and their parents sued to challenge the law before the Justice Department did so. While the Supreme Court opted to hear only the administration's appeal, it allowed the lawyer for these original plaintiffs to join in the arguments.

"Because of this, even if the incoming Trump administration announced a change in position, it seems unlikely that the case would be dismissed as moot," said David Gans, an attorney at the Constitutional Accountability Center liberal legal group.

The justices on Oct. 8 heard the Biden administration's appeal defending its 2022 regulation targeting parts and kits for ghost guns in a challenge by manufacturers, gun owners and gun rights groups. During arguments, a majority of the justices seemed willing to uphold the regulation.

If the Trump administration wants to "rescind the regulation, or they want to drop the appeal, they could decide that," Dorf said, "assuming the Supreme Court doesn't hand down a decision before the change in administration."