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In recent years, it’s become something of a parlor game among Supreme Court-watchers to guess which of the previous administration’s legal positions the new Solicitor General will reverse following the election of a new president.

These high-profile “flip-flops” by the Solicitor General, or SG, are commonly attributed to changing political winds. Since the 1980s, there have been at least 10 flips in each administration except for that of George H.W. Bush, who succeeded another Republican. And over time, the pace of reversals has accelerated; since 2013, there have been more than 15 cases of flips during each four-year period.

In oral arguments, some Supreme Court justices have expressed skepticism of these reversals, calling into question the credibility of an SG whose legal argument diverges from that of a predecessor. But SG flips aren’t simply a matter of partisan expediency, according to Margaret H. Lemos, the Robert G. Seaks LL.B. ’34 Distinguished Professor of Law at Duke Law School. In “The Solicitor General, Consistency, and Credibility,” Lemos and co-author Deborah A. Widiss found a range of other factors contributed to SG reversals.

“It's not that these flips are not ideological, but they're not only ideological,” Lemos said.

To understand why, it helps to know what the Office of the Solicitor General does. While its most visible function is representing the interests of the United States in arguments before the Supreme Court, it also oversees other government litigation, especially appellate advocacy, to promote a consistent government legal position. That complex institutional role overseeing some 40,000 lawyers working throughout the federal government helps explain some of its reversals, the authors concluded after reviewing 131 cases dating from 1892 to 2022 that included reversals by the SG.

Lemos and Widiss examined the original data set for two types of consistency: horizontal, or lateral, consistency, in which the government’s legal arguments are uniform at a specific point in time across different courts, and longitudinal consistency, meaning whether the government maintains the same position over years. The cases were broken down by government role — whether the SG was petitioner, respondent, or serving as an amicus or “friend of the Court” to offer the government’s views on a matter in which it was not a party — and type of flip, such as whether the SG reversed its previous position in the same case, its position in a different case, or positions taken in the lower courts.

They were surprised to find that flips were equally common whether the SG was appearing in court involuntarily as a respondent or appearing as an amicus; each role accounted for 37% of the flips.

“It would stand to reason that we would see more of these flips in cases where the SG was reluctantly forced to make an argument,” said Lemos. “What we found instead was lots of flips in cases where the SG was there voluntarily — specifically in cases where the SG was going out of its way to weigh in as an amicus. That's interesting, because it suggests that maybe the SG’s office is not actually as worried as you might think it would be about presenting changed legal arguments to the court.”

They also found that the most common type of flip, accounting for 70% of cases, was when the SG abandoned a position that had been argued in a lower court. Only 10% of flips were the most high-profile type, in which the Office of the SG reverses itself in front of the Supreme Court in an ongoing case.

An office "inherently susceptible" to changing ideology

Lemos and Widiss emphasize that flips might be problematic for various reasons: frequent changes can contribute to legal instability, and the new positions might be difficult to defend on substantive grounds. But they argue that the fact that the SG is reversing a previous position should not, in itself, undermine the credibility of the office. After all, the Supreme Court was created as an impartial arbiter of the law, separate from politics, while the Office of the Solicitor General is part of the executive branch, making it inherently susceptible to changing political ideology.

“We know that things are going to change when the White House shifts hands from Biden to Trump,” Lemos observed. “The credibility or legitimacy behind sticking to the same understanding of the law plays out very differently for a court versus an office like the SG.” 

For example, in the 1980s and 1990s, government lawyers argued that the US Postal Service could deny accommodations to pregnant workers and save less physically demanding roles for workers who were injured on the job. Some courts agreed, but others thought the policy was a misreading of the 1978 Pregnancy Discrimination Act, which requires employers to treat pregnant employees “the same” as “other persons not so affected but similar in their ability or inability to work.” 

In December 2014, SG Donald B. Verrilli argued in support of a UPS worker who was denied accommodations for her pregnancy even though UPS provided light duty for those with disabilities and workplace injuries. Justice Ruth Bader Ginsburg challenged Verrilli, noting the government had previously defended a similar argument to UPS’s, and UPS’s own lawyer described Verrilli’s position as a “180-degree change” from the government’s earlier stance.

The Obama Administration supported women’s rights in the workplace. But in the intervening years, Lemos noted, several other advancements had occurred that likely informed Verrilli’s argument. The 2008 Americans with Disabilities Act was expanded to qualify many temporary limitations, similar to those caused by pregnancy, as disabilities employers needed to accommodate. And in the summer of 2014, informed by its own experience enforcing the Pregnancy Discrimination Act, the Equal Employment Opportunity Commission released guidance endorsing the position Verrilli eventually took. Public opinion had shifted too, with many states recognizing new protections for pregnant workers. In other words, the world had changed, as had the views of relevant federal agencies.

This dynamic and evolving understanding of the law poses a problem for a court in which many of the conservative justices adhere to a formal view of the law, in which the meaning of federal statutes like the Pregnancy Discrimination Act is to be found in the text and is fixed from the date of enactment, leaving no room for policy considerations or value judgements. That the SG, one of the Supreme Court’s most trusted interlocutors, can change its position challenges this judicial philosophy.

The Court’s approach helps explain why the SG often defends flips by characterizing the old positions as errors. If even the most difficult legal questions have only one correct answer, then a change of position means “somebody made a mistake before, or they're making a mistake now. Somebody must be wrong,” said Lemos.

In reality, though, the “correct” answer often isn’t so clear, and often can’t be separated from contested value judgments — especially in the kinds of cases that make it to the Supreme Court.

“I think the idea that a legal argument could be right for one time and one administration and wrong for another makes the justices really uncomfortable,” Lemos said.