Many people, including Supreme Court Justices, have expressed concern about flip flopping by the Solicitor General (SG), i.e., arguing in support of a position that is inconsistent with the position that the government took in the past. In The Solicitor General, Consistency and Credibility, forthcoming in the Notre Dame Law Review, Professors Margaret Lemos and Deborah Widiss have helped us understand this phenomenon by engaging in an empirical study of flip flopping. They define flip flopping to include cases in which the government takes inconsistent positions before the Supreme Court in different cases, cases in which the government takes a position in the Supreme Court that is inconsistent with the position it took in lower courts in the same case, and cases in which the government takes inconsistent positions before the Supreme Court in the same case.

The authors’ primary concern is the relationship between flip flopping and the credibility of the Solicitor General in the Supreme Court. So far, flip flopping seems to have had little effect on the SG’s credibility in the Supreme Court. The authors provide a table in which they divide incidences of flip flopping into several categories (p.25). The SG’s success rate was significantly lower than usual in only one category: When the SG takes inconsistent positions before the Supreme Court in the same case, it prevails less than half as often as it does in most cases.

Flip flopping also raises other concerns. Several Justices expressed concern about the effects of the combination of flip flopping and Chevron deference during the oral argument in Loper Bright and Relentless—the cases in which the Court ultimately overruled Chevron last month. The Court’s concern is that the duty of a judge to uphold any reasonable interpretation of an ambiguous agency-administered statute, coupled with the extreme political polarity that we are now experiencing, can produce a legal regime in which “the law” changes significantly every time an election produces a change in the party that controls the executive branch.

The study produced findings that the incidence of flip flopping has increased dramatically in recent years. There were 131 cases of flip flopping between 1941 and 2023 (pp.24-26). 17 took place between 1941 and 1980—an average of less than 1 every two years. 37 took place between 2017 and 2023—an average of over 6 per year.

The authors identify three factors in addition to a change in president that can explain some flip flops. First, the “two hat” phenomenon can explain some flip flops (pp.36-37). That phenomenon refers to the fact that the Department of Justice sometimes represents an agency that is performing a prosecutorial role and then later develops a different understanding of the same statute based on its representation of an agency that is acting in a different role, e.g., as an employer.

Second, “changed circumstances” can explain some flip flops (pp. 37-40). Thus, for instance, our improved understanding of the relationship between emissions of carbon dioxide and climate change was a major factor in the government’s decision to classify carbon dioxide as a pollutant.

Third, “zealous advocacy” can explain some flip flops (40-42). A Department of Justice lawyer might develop a strong belief in an agency’s views in the process of representing an agency in a particular case and then develop different views based on a more objective study of the statute at issue.

I am sure that those three factors explain a few of the recent flip flops. But those factors have always existed, so I doubt they fully explain the 1300% increase in the incidence of flip flopping between 1980 and 2023. The vast majority of the 37 flip flops that took place over the past six years—and many of the changes in agency policy that the SG has defended during that time that were not captured in this study—must be attributable to the combination of political polarity and changes in the party that controls the executive branch.

Professors Lemos and Widiss seem not to be overly concerned about the dramatic increase in SG flip flops in recent years. They attribute them in part to the three other factors, in part to the inherent indeterminacy of the law, and in part to the appropriate political accountability of the SG to the democratically elected president. They attribute the concern expressed by Supreme Court Justices to their conservative perspective on the law as fixed and inflexible (pp. 42-56).

I am not as sanguine about the high and growing incidence of SG flip flops. As I have explored elsewhere, I doubt that the country can continue to enjoy its extraordinary history of success in circumstances in which the law changes in fundamental ways every time an election changes the party that controls the executive branch.

Richard J. Pierce, Jr. is the Lyle T. Alverson Professor of Law at the George Washington University Law School.