October 27, 2017 Articles

The Department of Justice’s “Legal U-Turns”

How the department has reversed its positions on appeal.

By Cassandra Robertson – October 27, 2017

A change of presidential administration comes with a shift in policy. Each administration has its own priorities and stakes its own position on major policy questions. Those policy shifts may lead to changes in legal strategy and positions. Law and policy are, after all, closely intertwined.

Nonetheless, it is relatively uncommon for a new administration to change position in a pending appeal. Even in the transition from Bush to Obama, observers noted “how much consistency there is between administrations.” Lawyers in the solicitor general’s office believed that engaging in a blatant reversal on political grounds risked threatening the office’s credibility with the courts. When appellate shifts in direction did occur, they tended to be carefully strategized. 

Premium Content For:
  • Litigation Section
Join - Now