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Positions could change on transgender, gun, vape cases

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Incoming U.S. solicitor general will be pivotal

By John Kruzel, Andrew Chung

WASHINGTON, Nov 14 (Reuters) - Republican Donald Trump's

return to the presidency is expected to precipitate a shift in

the U.S. government's legal stance in major cases pending at the

Supreme Court, including a closely watched dispute involving

Tennessee's ban on gender-affirming medical care for transgender

minors.

After Trump succeeds Democrat Joe Biden on Jan. 20, other big

cases in which the new administration could change positions

include ones involving the largely untraceable firearms called

"ghost guns," nuclear waste storage, flavored vape products and

securities fraud, according to legal experts.

Trump on Wednesday tapped Republican congressman Matt Gaetz as

his nominee for attorney general. Trump has not yet announced

his nominee for U.S. solicitor general, the Justice Department

official who represents the government in Supreme Court cases.

"I expect that the Trump solicitor general will change

positions in major cases before the Supreme Court," said Erwin

Chemerinsky, dean of the University of California, Berkeley Law

School.

"It happened in 2016 and it happened in 2020," Chemerinsky

added, referring to transfers of power with a president of one

party succeeding a president of the other.

The expected changes in positions by the new incoming

administration may be a closer ideological fit for the Supreme

Court's 6-3 conservative majority, which includes three justices

appointed by Trump.

"I don't think that Trump administration switches will

trouble this court too much. My guess is that most or all of the

administration's switches will align with positions of a

majority on the court, and that they'll be happy to have a

solicitor general who puts those positions before them,"

University of Illinois Chicago law professor Steve Schwinn said.

The Supreme Court on Dec. 4 is scheduled to hear arguments

in the Biden administration's appeal of a lower court's decision

upholding Tennessee's Republican-backed state law banning

medical treatments including puberty blockers and hormones for

minors experiencing gender dysphoria. That is the clinical

diagnosis for significant distress resulting from an

incongruence between a person's gender identity and sex assigned

at birth.

The Biden administration, which sued in an attempt to block

the law, has argued that the ban discriminates against these

adolescents based on their sex and transgender status, violating

the U.S. Constitution's 14th Amendment equal protection

guarantee.

"One would not see a Trump administration seeking to advance

arguments that would protect the interests of trans individuals

and trans children," Georgetown University law professor Michele

Goodwin said. "That seems very inconsistent with the line of

discourse that's come from Trump during his time of running as a

candidate and also inconsistent with his prior service in

office."

Trump's solicitor general also could reverse course on the

Biden administration's positions in two cases defending

regulatory agencies - appeals involving the Nuclear Regulatory

Commission's authority to license nuclear waste storage

facilities and the U.S. Food and Drug Administration's denials

of various applications to sell flavored vape products.

A U-turn also could come in the Biden administration's

support for shareholders in cases involving separate private

securities fraud lawsuits against chipmaker Nvidia ( NVDA ) and

Meta's Facebook social media platform.

"I think the Trump administration will be like other

Republican administrations, in that they're going to be less

regulatory than a typical Democratic administration, and that

could mean changing positions in cases in which they are on the

other side from some regulated industry," Cornell Law School

professor Michael Dorf said.

'NATURE OF DEMOCRACY'

Such policy reversals at the Supreme Court are not uncommon

when a Republican president succeeds a Democrat, and vice versa.

"The nature of democracy is that differences in political

opinions can be expressed in this way," said Deborah Widiss, an

Indiana University law professor who has written about this

dynamic.

"As far as how the justices respond, I don't think that the

mere fact of a switch should necessarily discredit the

government's position. These are contested legal issues where

there are arguments on both sides," Widiss added.

After Trump took office for the first time in 2017, his

administration departed from legal positions advanced at the

Supreme Court under his Democratic predecessor Barack Obama on

issues from labor unions to in-house judges at the Securities

and Exchange Commission to election law, Widiss noted.

Trump's first administration also rescinded a federal directive

telling public schools to let transgender students use bathrooms

matching their gender identity, prompting the Supreme Court to

scrap plans to hear a case involving a transgender public school

student in Virginia.

After Biden defeated Trump in the 2020 election, his

administration reversed course on some of his predecessor's

actions, especially concerning immigration. This prompted the

Supreme Court in 2021 to scrap scheduled arguments in Trump's

appeals defending his restrictive asylum policy and his plan to

shift military funds to pay for the U.S.-Mexico border wall.

At the Biden administration's urging, the Supreme Court

dismissed in 2021 litigation over another immigration measure

devised under Trump that barred people deemed likely to need

government benefits from legal permanent U.S. residency. Biden's

administration issued a new rule in 2022.

TRANSGENDER ARGUMENTS

It remains to be seen how the Supreme Court would react to a

Trump decision to reverse course in the Tennessee case.

A group of transgender adolescents and their parents sued to

challenge the law before the Justice Department did so. While

the Supreme Court opted to hear only the administration's

appeal, it allowed the lawyer for these original plaintiffs to

join in the arguments.

"Because of this, even if the incoming Trump administration

announced a change in position, it seems unlikely that the case

would be dismissed as moot," said David Gans, an attorney at the

Constitutional Accountability Center liberal legal group.

The justices on Oct. 8 heard the Biden administration's

appeal defending its 2022 regulation targeting parts and kits

for ghost guns in a challenge by manufacturers, gun owners and

gun rights groups. During arguments, a majority of the justices

seemed willing to uphold the regulation.

If the Trump administration wants to "rescind the

regulation, or they want to drop the appeal, they could decide

that," Dorf said, "assuming the Supreme Court doesn't hand down

a decision before the change in administration."