By Jonathan Stempel
WASHINGTON, Nov 27 (Reuters) - U.S. Chief Justice John Roberts publicly dressed down an Obama administration lawyer on
Tuesday, demanding that he be upfront about policy changes from
one president to another and not hide behind language suggesting
It wasn't the first time some of the nine justices had
questioned the consistency of positions taken by the Office of the Solicitor General, which argues cases on the government's
behalf. Tuesday's critique accusing the office of effectively
camouflaging a new position may be the harshest yet.
Roberts said he objected to the administration's failure in
a court filing to acknowledge directly that its secretary of
labor had reversed the policy on reimbursements under company
medical plans of her predecessor in the Bush administration.
"You cite the prior secretary by name, and then you say, the
secretary is now of the (different) view. I found that a little
disingenuous," Roberts told Joseph Palmore, an assistant to
Solicitor General Donald Verrilli.
"It's not the same person," Roberts said during oral
argument at the U.S. Supreme Court on Tuesday.
Such criticism of the solicitor general's office could
prompt greater skepticism among justices about the influence of
that office, whose guidance the court frequently seeks even
where the government is not a party to a lawsuit.
There was no suggestion that the Obama administration was
trying to confront the court on a substantive issue.
Rather, what seemed to irk the chief justice, himself a
former deputy solicitor general, was that the administration was
not forthright about its new legal approach.
Nanda Chitre, a Justice Department spokeswoman, had no
The chief justice was irritated by Footnote 9 in a brief
from the solicitor general over whether a US Airways medical
plan should be reimbursed for costs it paid to an employee who
later recovered damages from a third party for his injuries.
That footnote referred to a case from 2004, when former
president George W. Bush's secretary of labor Elaine Chao had
urged that a court should in some circumstances enforce a
medical plan's plain terms.
It went on to say that "upon further reflection" and in
light of later case law, Obama Labor Secretary Hilda Solis had
taken a position that might be more favorable to the employee.
Roberts would have none of it.
"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," he told Palmore. "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."
"With respect, Mr. Chief Justice, the law has changed since
that brief was filed nearly 10 years ago," Palmore said.
"Then tell us the law has changed," Roberts responded.
Verrilli faced similar questioning in the first case argued
this term, when he advocated greater leeway for victims of human
rights abuses abroad to pursue U.S. lawsuits accusing foreign
companies of aiding in the atrocities.
"Why should we listen to you rather than the solicitors
general who took the opposite position?" Justice Antonin Scalia
asked Verrilli during the Oct. 1 oral argument.
"We think they are persuasive, your honor," Verrilli said.
"Oh, okay," Scalia said amid much laughter in the courtroom.
That wasn't enough for Roberts. "Your successors may adopt a
different view," he then told Verrilli. "Justice Scalia's point
means whatever deference you are entitled to is compromised by
the fact that your predecessors took a different position."
(Additional reporting by Joan Biskupic)
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