The perm fails---OSG credibility suffers from passing the plan without prior approval.

I. Positional Consistency in Solicitor General Litigating Positions

Judicial stare decisis is in a state of flux in the Supreme Court. The doctrine, which states that the Court will stand by its precedents absent special circumstances, is anything but stable. To the contrary, the Justices have fragmented in their understanding of it. Justice Kagan has emphasized its centrality to the Court's role in case after case. 10Justice Kavanaugh has attempted to synthesize its basic elements into a new tripartite framework. 11Justice Gorsuch has found that it did not apply when a prior decision broke from earlier law and rested on the aberrant views of a single Justice. 12The Chief Justice has prominently embraced it, but simultaneously endorsed an escape hatch for precedent that itself departed from precedent. 13And Justice Thomas has virtually declared war on the doctrine, saying it should yield whenever the Court is sure that a prior decision is wrong. 14For a doctrine that aims to promote stability, predictability, and societal confidence "that bedrock principles are founded in the law rather than in the proclivities of individuals," 15the Court's inability to agree on the basic operation and scope of stare decisis is striking.

But the Court is not the only institution of government in which standing by precedent is a guiding principle. 16 While the doctrine of stare decisis is purely a principle of judicial restraint, it exerts a direct influence on OSG--the most frequent litigant in the Supreme Court and an office that by tradition and design is highly attuned to the Court's standards and practices. As the ultimate repeat litigant before the Court, OSG has an enormous interest in maintaining its own credibility in the Court's eyes. That credibility could be severely undermined by asking the Court to alter its precedent without meeting the Court's stare decisis standards. And as representative of a client—the Government—that generally benefits from a stable legal framework, OSG has a compelling practical interest in reinforcing the value of precedent and the need for special justification to reverse it. Finally, as the government office that directly and regularly interacts with the Justices in face-to-face dialogue in oral argument—and that often has the role of explaining and defending unpopular Court decisions to skeptical and hostile governmental audiences--OSG has an almost personal stake in standing by the Court's precedent and authority, as a sign of respect and even "loyalty to the Court." 17

But what about stability and consistency in OSG's own litigating positions? Law is not static--it is constantly buffeted by new decisions, understandings, and interpretations. Solicitors General change--certainly, with a change in administration and often in between--and the change in personnel may bring a change in jurisprudential commitments. And OSG may watch as a legal position it has approved is torn to shreds in the lower courts. OSG historically has shown a significant degree of openness to reversing a position that the Government took in the lower courts, even if OSG had previously approved the position. Lower-court litigation serves as a canary in the coal mine. If a position consistently loses in the courts of appeals, in my experience OSG will readily reconsider its approach when the issue reaches the Supreme Court. After all, the stakes are greater since the Court will issue a final, binding decision with nationwide application. 18