The Solicitor General, Consistency, and Credibility

72 Pages Posted: 1 Apr 2024

See all articles by Margaret H. Lemos

Margaret H. Lemos

Duke University School of Law

Deborah A. Widiss

Indiana University Maurer School of Law

Date Written: March 25, 2024

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, as the justices’ willingness to stand by legal rulings adopted by their own predecessors is increasingly uncertain, and as the Court seems poised to reconsider foundational doctrines governing the relationship between judicial and executive interpretation of statutes. Recent challenges to agency deference under Chevron v. Natural Resources Defense Council rest on 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.

Suggested Citation

Lemos, Margaret H. and Widiss, Deborah A., The Solicitor General, Consistency, and Credibility (March 25, 2024). Notre Dame Law Review, Forthcoming, Indiana Legal Studies Research Paper No. 516, Duke Law School Public Law & Legal Theory Series No. 2024-21, Available at SSRN: https://ssrn.com/abstract=4771600

Margaret H. Lemos (Contact Author)

Duke University School of Law ( email )

Box 90360
210 Science Drive
Durham, NC 27708
United States

HOME PAGE: http://www.law.duke.edu/fac/lemos

Deborah A. Widiss

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States

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