Republican Donald Trump’s return to the presidency is set to drive a significant shift in the U.S. government’s legal positions on major cases currently before the Supreme Court, including a high-profile dispute over Tennessee’s ban on gender-affirming medical care for transgender minors.
Upon Trump’s inauguration on January 20, his administration is expected to alter its stance on several big cases, such as those involving untraceable “ghost guns,” nuclear waste storage, flavored vape products, and securities fraud, according to legal experts.
On Wednesday, Trump selected Republican congressman Matt Gaetz as his nominee for attorney general. He has not yet named a nominee for U.S. solicitor general, the Justice Department official responsible for representing the government in Supreme Court cases.
“I expect that the Trump solicitor general will shift positions in major cases before the Supreme Court,” said Erwin Chemerinsky, dean of the University of California, Berkeley Law School. He noted that similar transitions occurred during the power shifts in 2016 and 2020, where a president of one party succeeded a president from the opposite party.
This anticipated shift may align more closely with the Supreme Court’s 6-3 conservative majority, including three justices whom Trump appointed. “I don’t think the court will be troubled by Trump administration switches. I expect most or all will align with the majority’s positions, and they’ll likely welcome a solicitor general who presents those views,” said Steve Schwinn, a University of Illinois Chicago law professor.
On December 4, the Supreme Court plans to hear arguments in the Biden administration’s appeal of a lower court decision that upheld Tennessee’s Republican-supported state law banning medical treatments like puberty blockers and hormones for minors with gender dysphoria. The Biden administration, which sued to block the law, argued that the ban discriminates against transgender adolescents based on sex and gender status, thus violating the U.S. Constitution’s 14th Amendment equal protection guarantee.
“I wouldn’t expect the Trump administration to advocate arguments that support trans individuals or trans children,” commented Michele Goodwin, a Georgetown University law professor, pointing out that Trump’s previous rhetoric and policies suggest a different stance.
Trump’s solicitor general could also reverse the Biden administration’s positions in two additional cases. These include cases defending the authority of the Nuclear Regulatory Commission to license nuclear waste storage facilities and the U.S. Food and Drug Administration’s rejection of applications for flavored vape products.
Another reversal could emerge in cases involving shareholder lawsuits. The Biden administration currently supports shareholders in securities fraud cases against chipmaker Nvidia and Meta’s Facebook platform. “The Trump administration will likely resemble other Republican administrations by favoring less regulatory action than Democrats, which could lead to position changes in cases opposing regulated industries,” said Michael Dorf, a professor at Cornell Law School.
Policy reversals at the Supreme Court level often accompany power shifts between parties, noted Deborah Widiss, an Indiana University law professor who has researched this trend. “Democracy allows for these expressions of political differences,” she said. “Judges generally don’t discredit the government’s stance solely because of a position change, especially on issues with compelling arguments on both sides.”
Trump’s previous administration also reversed positions that Obama’s administration had defended, addressing issues from labor unions to SEC in-house judges and election law. In 2017, Trump’s administration rescinded a federal directive requiring public schools to let transgender students use bathrooms matching their gender identity, which prompted the Supreme Court to cancel a case involving a transgender student in Virginia.
Similarly, after Biden took office in 2020, his administration reversed course on several Trump policies, especially those concerning immigration. The Supreme Court scrapped arguments in Trump’s appeals defending restrictive asylum policies and a plan to shift military funds toward a U.S.-Mexico border wall. In 2021, the Supreme Court dismissed litigation over another Trump-era immigration rule on public benefits, following the Biden administration’s urging. The administration later issued a new rule in 2022.
In the Tennessee case involving gender-affirming care, the Supreme Court allowed arguments from the original plaintiffs—a group of transgender adolescents and their parents who challenged the law. Because of their inclusion, the case would likely proceed even if Trump’s administration shifts its position, according to David Gans, an attorney at the Constitutional Accountability Center.
On October 8, the justices heard the Biden administration’s appeal to uphold its 2022 regulation targeting “ghost guns.” A majority of justices seemed inclined to support the regulation. If Trump’s administration decides to rescind the regulation or drop the appeal, it could do so—assuming the Supreme Court has not issued a ruling before Trump’s inauguration, said Dorf.
