In The Solicitor General, Consistency, and Credibility, Professors Maggie Lemos and Deborah Widiss provide an eye-opening deep dive into an increasingly common—and oft-criticized—practice engaged in by the Solicitor General’s Office (OSG): rejecting a legal argument that was offered on behalf of the United States in prior litigation. Such flip-flops by the SG’s office have received considerable attention in recent years, as shifts in presidential administrations have produced a number of high-profile reversals that have, at times, garnered open criticism from the U.S. Supreme Court. The conventional wisdom posits that such OSG reversals are undesirable and pose a threat to the SG’s credibility with the Court. Lemos & Widiss seek to turn that wisdom on its head, arguing that there are often good reasons for the OSG to reverse course and urging courts to make a more nuanced assessment of the circumstances surrounding a reversal before deeming it problematic.
In order to better understand how and why the SG’s office engages in litigation flips, the authors compiled an original dataset of 130 cases dating from 1892 to the close of the Court’s 2022 Term that contained such reversals. Their goal was to provide both a descriptive account of litigation flips and a normative argument for why (and when) the Court’s skepticism of such flips is itself problematic. To that end, the authors offer the following taxonomy, or categories, of OSG flips: (1) flips that are due to changes in presidential administration; (2) flips that result from the fact that the government often wears “two hats”–such that it may have taken one position in litigation involving one agency, and a different position in litigation involving a different agency or that it may have been acting as an employer in one lawsuit but as a regulator in a later lawsuit; (3) flips that arise as a result of changed factual or legal developments, including on-the-ground experience with the relevant legal regime, or intervening changes in statutes, regulations, or judicial interpretations; or (4) flips that result simply from “zealous advocacy”—or efforts to obtain the best possible outcome for the client in a particular case.
After detailing the circumstances under which OSG flips typically occur, the authors turn to addressing what precisely courts seem to find so problematic about such flips. In this section, Lemos & Widiss offer several thoughtful theoretical guesses regarding the potential causes for the Justices’ discomfort with OSG flips. These include, for example, (1) the modern Court’s formalist judicial philosophy, which assumes there is a single “correct” answer for each legal question and accordingly views the rejection of one’s former position as duplicitous; as well as (2) the possibility that the Justices view the OSG as a trusted advisor and regard litigation flips as a sign of carelessness or a propensity for error that renders the advisor less trustworthy.
Lemos & Widiss ultimately reject the above reasoning, arguing that judicial disapproval of flips is usually misplaced—and that, in fact, the ideological flips that tend to draw the most criticism often are the ones that are most justified. Specifically, the authors argue that the OSG is a source of important information to the justices—including information about how government programs work in practice. Citing earlier work by David Strauss, they note that the OSG is in a position to bring to the Court’s attention the effects that legal rules and decisions are having on the ground. In other words, the authors suggest that OSG flips need not signal a lack of care or “error,” but could instead reflect attentiveness to changed factual or legal circumstances—and that in so flipping positions, the OSG may be serving the Court well by making the Justices aware of new developments that justify a shift in legal rules.
Professors Lemos & Widiss conclude by noting that litigation reversals by the OSG can—and often do—reflect a principled effort to understand the law in light of current norms and needs. And they urge the Court to take a more nuanced approach to evaluating such reversals, rather than adopt a knee-jerk view that all OSG flips are problematic and should be treated skeptically.
In the end, The Solicitor General, Consistency, and Credibility provides novel insights into how, when, and why OSG flips occur—as well as persuasive arguments about why such flips are not uniformly (or even predominantly) bad. The article is a must-read for anyone who is interested in the OSG and the role it plays in Supreme Court litigation.
