Great Moments in SG Advocacy

Earlier this week, the Supremes heard oral arguments in US Airways v. McCutchen. It’s an ERISA case, so you really don’t want to know. However, the argument contained the following eyebrow-raising colloquy between the Chief and Assistant Solicitor General Joseph R. Palmore: 

CHIEF JUSTICE ROBERTS: Counsel, the position that the United States is advancing today is different from the position that the United States previously advanced. You make their point in footnote 9 of your brief. You say that in prior case, the secretary of labor took this position. And then you say that, upon further reflection, the secretary is now of the view — that is not the reason. It wasn’t further reflection. We have a new secretary now under a new administration, right?

MR. PALMORE: We do have a new secretary under a new administration. But that -­

CHIEF JUSTICE ROBERTS: It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary. It’s not that the secretary is now of the view — there has been a change. We are seeing a lot of that lately. It’s perfectly fine if you want to change your position, but don’t tell us it’s because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it’s because there is a new secretary.

MR. PALMORE: With respect, Mr. Chief Justice, the law has changed since that brief was filed nearly ten years ago in the Court’s review.

CHIEF JUSTICE ROBERTS: Then tell us the law has changed. Don’t say the secretary is now of the view. It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.

“We are seeing a lot of that lately”: ouch.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book isy The Upside-Down Constitution (Harvard University Press, 2012).

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