There’s been an election? If the new position is wrong, Court should explain why. But so long as it’s plausible, DOJ is entitled to it.https://twitter.com/steve_vladeck/status/979132268152348672 …
Legal Editor, @BuzzFeedNews. SCOTUS Correspondent. Nat Sec Team, covering Trump & Mueller. Sober. Gay. Buckeye. Law Dork. DMs open. chris.geidner@buzzfeed.com
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Alan Gura Retweeted Steve Vladeck
There’s been an election? If the new position is wrong, Court should explain why. But so long as it’s plausible, DOJ is entitled to it.https://twitter.com/steve_vladeck/status/979132268152348672 …
Alan Gura added,
(1) The court explained why. (2) DOJ's new position is heartless and morally indefensible. (3) DOJ's new position is not compelled by precedent. Other than that, okay.
These may all be reasons to reject the position. But unless it’s actually frivolous, if it represents a possible way of seeing things, DOJ doesn’t need to explain why elections have consequences.
So you don’t believe there is _any_ norm even remotely akin to stare decisis for the Justice Department?
Then what—if anything—differentiates DOJ from a private party with respect to the respect, weight, and deference that courts should give to its legal positions?
Nothing! Absolutely nothing. If there should be a thumb on the scale, and there shouldn’t, it should be on the other side.
So, all of the deference SCOTUS gives to the SG’s Office — in part based on those norms and expectations — should it stay as it is?
Well, that is a coherent position. And one that the continued repeated switching of positions with no clear reason for doing so besides politics would increase the likelihood of coming to pass.
Did Clinton and Obama change any positions in court when they came in? It’s ok. They won. We’re a democracy. And why defer to government views on anything? That’s the opposite of what America is about.
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