People constantly accuse politicians, judges, and commentators of flip-flopping on institutional issues. Republicans who objected to filibusters of Bush’s nominees now defend the practice as applied to Obama’s–and the Democrats who defended filibustering then attack it now. Most of the liberal commentators who accused Bush of abusing executive power have now fallen silent, while the earlier Republican defenders of Bush have now, under Obama, discovered the dangers of the imperial presidency. Justices who appeal to the majesty of democratic rule in the course of upholding a statute today turn around and strike down a statute despite majority support for it tomorrow. And so on.
Many flip-flops reflect meaningless political posturing, but so do many of the accusations of flip-flopping. An apparent flip-flop can turn out to be nothing of the sort once one pierces the often sloppy rhetoric. Perhaps real flip-flops can be justified as the result of learning, at least to a limited extent. But beneath the surface, there is much of interest. Flip-flopping can result from an ambiguous or unsettled institutional norm. People are not just posturing but trying to get the norm settled in a way that advances their interests.
Much more can be said, and is said, in a new paper that I have written with Cass Sunstein, available at SSRN.