Document Type
Article
Publication Date
2025
Abstract
This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on the meaning of the law, and to unpack the connections between consistency and credibility.
To assess these questions, we build an original dataset of 131 cases, dating from 1892 to the close of the Court’s 2022 Term, that include such reversals. A close reading of the cases and associated briefing and oral argument transcripts confirms that changes in the government’s litigating position have become more common in recent decades—but it also reveals significant blind spots in the prevailing picture, which depicts positional changes as a function of political polarization and shifts in presidential administrations. Reversals happen for a variety of (often overlapping) reasons, many of which stem from the SG’s unique role in coordinating litigation across a vast and constantly changing federal government. Indeed, our study calls into question the idea that ideological swings associated with changes of presidential administrations can be isolated, either in theory or in practice, from other sorts of legal, social, and technological changes that shape the government’s understanding of the law. It also shows that the connection between consistency and credibility, while intuitive at first blush, rests on a formalist understanding of law and an unpersuasive equation of the judiciary and the executive.
These insights are particularly important today, given the Justices’ willingness to jettison their own longstanding precedents while simultaneously hamstringing administrative agencies’ ability to update or modify policies. The Court’s decision in Loper Bright Enterprises v. Raimondo, overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., endorsed an understanding of the law and legal interpretation in which even the hardest questions have single “best” answers—and, once ascertained, the meaning of the law is fixed. As we show, the Justices’ reactions to litigation reversals by the government rest on similar premises. Given that the SG has powerful incentives to offer arguments that appeal to the Justices, the Court’s skepticism of litigation reversals risks freezing legal interpretation by the government actors who often are best situated—by virtue of democratic accountability and on-the-ground experience—to consider the tradeoffs between stability and change.
Citation
Margaret H. Lemos & Deborah A. Widiss, The Solicitor General, Consistency, and Credibility, 100 Notre Dame Law Review 621-728 (2025)
Library of Congress Subject Headings
Courts, Judicial review, Government attorneys, Political questions and judicial power
Included in
Administrative Law Commons, President/Executive Department Commons, Supreme Court of the United States Commons
Available at: https://scholarship.law.duke.edu/faculty_scholarship/4404
