The Solicitor General, Consistency, and Credibility

Margaret H. Lemos* & Deborah A. Widiss**

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.

Continue reading in the print edition . . .

© 2025 Margaret H. Lemos & Deborah A. Widiss.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

The Notre Dame Law Review has not independently reviewed the data and analyses described in this Article.

*Robert G. Seaks LL.B. ’34 Professor of Law, Duke University.

**John F. Kimberling Professor of Law, Indiana University Maurer School of Law.  We are hugely grateful for conversations with and insightful feedback from Nicholas Almendares, Josh Blackman, Barry Friedman, Luis Fuentes-Rohwer, Tara Leigh Grove, Andrew Hammond, Anita Krishnakumar, Jay Krishnan, Leandra Lederman, Nina Mendelson, Luke Norris, Dick Pierce, Alex Reinert, Kate Shaw, Kevin Stack, Alex Zhang, and participants at the 2023 Legislation Roundtable held at Georgetown University Law Center and at faculty workshops at Drexel University Thomas R. Kline School of Law, Indiana University Maurer School of Law, and University of Richmond School of Law.  We also owe a debt of gratitude to Sarah Edwards, Meg Gilligan, Catherine Gorey, Andrew Guenther, Thomas Moy, and Mikaela Milligan for invaluable research assistance, as well as to Maurer librarian Margaret Kiel-Morse for her help with databases and to Addison Mummert for her dexterity with data visualizations.  Our thanks as well to the Notre Dame Law Review editors for their extremely conscientious work finalizing this Article for publication.