Outgoing administrations often aim to solidify their legacy by influencing the legal landscape through various measures during their final days. These actions, commonly referred to as midnight regulations, monument designations, or pardons, typically receive significant attention. However, one less-discussed category warrants closer scrutiny: midnight solicitor general opinions.
The solicitor general, appointed by the president with Senate approval, represents the official legal stance of the federal government in Supreme Court cases. Beyond this role, the solicitor general often submits unsolicited briefs supporting other government agencies in litigation. For the current term, 22 such briefs have been filed, with more expected in ongoing cases.
Midnight legal filings often leave a lasting legacy for outgoing administrations
Additionally, the Supreme Court frequently requests the solicitor general’s input on cases where the United States is not a direct party. This practice underscores the solicitor general’s influence, earning the informal title of the “10th justice.” These invited briefs, however, pose a risk of embedding last-minute legal interpretations that could shape the law’s trajectory for years to come.
Several high-profile cases currently await responses from the solicitor general, including those addressing federalism, climate change litigation, and judicial power. For instance, in Alabama v. California, Republican state attorneys general have challenged lawsuits by Democratic states against oil companies, arguing that these state-level actions improperly regulate global energy sectors.
Similarly, cases like Sunoco v. Honolulu and Shell v. Honolulu involve the liability of energy companies for climate change effects. In both instances, the Supreme Court has requested the solicitor general’s perspective.
Other pending cases involve contentious issues such as redistricting under the Voting Rights Act, the Dormant Commerce Clause’s application to state tax credit systems, and federal preemption of state pharmacy regulations under ERISA and Medicare Part D.
Additionally, the court has sought the solicitor general’s input on lawsuits concerning individual immunity for government officials in religious freedom violations.
The outgoing administration’s efforts to influence legal outcomes through such briefs could constrain the incoming government’s ability to implement its policies or reinterpret the law.
These actions risk leaving a lasting imprint that may undermine the new administration’s priorities. For instance, decisions in climate change cases could limit energy policies or international climate strategies, areas where the incoming administration’s perspective is crucial.
To avoid potential conflicts and preserve judicial efficiency, the Biden administration should refrain from filing these invited briefs, deferring instead to its successor. Once in office, the new administration could request to amend or withdraw these filings, ensuring consistency in the federal government’s legal positions.
If the outgoing administration proceeds with filing briefs, their interpretations should be viewed critically, recognizing the likelihood of advancing partisan agendas without accountability for any negative consequences. As such, these midnight actions represent not just a bid for influence but also a strategic move to shield themselves from the fallout of their decisions.
