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Supreme Court Test for Biden: How Boldly to Disavow Trump’s Agenda

The New York Times

01 Feb 2021

Joe Palmore spoke to the New York Times for an article covering how the Office of the Solicitor General under the Biden administration will soon have to decide whether to disavow positions taken by the preceding administration in major cases.

When the Obama administration filed a brief in 2012 changing a position taken by its predecessor, saying it was the product of “further reflection,” Chief Justice John G. Roberts Jr. complained at oral argument. He said the new position was prompted not by further reflection, but rather by a change in administrations.

Joe was presenting oral argument at the time, and he remembers it vividly.

“We had included a footnote – Footnote 9 in the brief – noting a change of position, and we used a phrase that had been commonly used by the office until then, which was ‘upon further reflection,’” he said. “My understanding is that after my experience, the office no longer uses that formulation of words when changing a position.”

He added: “I was the unlucky lawyer who happened to be at the podium when the chief said what he said. I think the message was meant more for the solicitor general, not for me.”

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