By: Donald L Swanson
I’m reading the U.S. Supreme Court’s latest opinion on a bankruptcy subject: U.S. v. Miller (decided March 26, 2025).
And I’m looking for something in the opinion that’s interesting . . . anything!
The opinion is about whether sovereign immunity has been waived for transfer avoidance actions under § 544(b).
And . . . truth is . . . I don’t care which way the opinion goes. And I’m yawning my way through it.
But then, I read the next-to-last sentence in the entire document—it’s in the dissenting opinion—which says:
- “I agree with the majority of circuits to have considered the question that bankruptcy trustees may avoid fraudulent transfers to the United States under §544(b).”
And now I care. Here’s why:
- the U.S. Supreme Court, once again, follows the Solicitor General’s position on a bankruptcy question that promotes the U.S. Government’s interests as creditor . . . and rejects a contrary position espoused by “the majority of circuits”; and
- it does so on an eight-to-one vote — the vote is not even close!
Predictable Events
There is, by the way, nothing more predictable in a bankruptcy case before the U.S. Supreme Court than this:
- the Solicitor General will be involved in oral arguments—whether the U.S. Government is a party in the case or not;
- the Solicitor General will take a position that favors the interests of the U.S. Government as creditor:
- this means, for example, the Solicitor General will always oppose bankruptcy benefits for individual debtors; and
- the Solicitor General takes such a position, even when it is contrary to the best interests of the federal bankruptcy system as a whole; and
- the U.S. Supreme Court will adopt the Solicitor General’s position.
Unholy Alliance—A Study
I’ve been contending for a long time that there is an unholy alliance between the U.S. Supreme Court and the Solicitor General’s Office on bankruptcy questions.
So, it was with great interest that I started reading this article: “The Loudest Voice at the Supreme Court: The Solicitor General’s Dominance of Amicus Oral Argument.”[Fn. 1] That’s because it supports my unholy alliance point.
–Observations in Introduction
Here are observation from the Introduction portion of the Loudest Voice article that illustrate how and why my unholy alliance concern has merit.
In April 2020, the U.S. Supreme Court does something it had not done in nearly a decade: it denies a motion by the Office of the Solicitor General of the United States to participate in oral argument as amicus.
Amicus oral arguments are a rare occurrence for every litigant except the Solicitor General. From the 2010 to 2019 terms, for example, the difference for amicus participations in oral arguments is this stark:
- 306 amicus oral arguments by the Solicitor General; and
- 15 amicus oral arguments by everyone else.
To most Supreme Court litigators and other Court watchers, the Solicitor General’s dominance of amicus oral argument is taken as a matter of course. The Solicitor General is even referred to by those Court watchers, without sarcasm or judgment, as the “Tenth Justice.”
The Solicitor General participates as an amicus or as a party in roughly 80% of the Supreme Court cases. Regarding that percentage, then-Judge / now-Justice (and former Principal Deputy Solicitor General) John G. Roberts remarked:
- “If you asked me as an abstract proposition whether I would be troubled by the idea that the executive branch was going to file something in every case before the Supreme Court explaining its views, as a sort of super law clerk, my answer would be yes, I would find that very troubling”; and
- “Eighty percent is pretty close to every case.”
In 2021, four of the Supreme Court Justices previously worked at the Office of the Solicitor General—Elena Kagan (SG, 2009–10), John G. Roberts, Jr. (Principal Deputy SG, 1989–93), Samuel A. Alito, Jr. (Assistant to the SG, 1981–85), and Brett M. Kavanaugh (Bristow Fellow, 1992–93).
Amicus oral arguments take argument time away from one of the parties and allocate it elsewhere—and amici are encouraged to offer legal arguments not advanced by the parties. Such arguments can undermine or derail a party’s arguments.
The Solicitor General performs before the Supreme Court under a procedural abnormality — it does not have an identifiable client:
- this allows the Solicitor General to ignore the ethical and professional rules that bind every other lawyer;
- the type of “independence” the Solicitor General is thought to have is possible only because it does not have a client whose interests it must serve and defend; and
- [my editorial comment is this: such “independence” in bankruptcy cases is actually a “conflict of interest”].
–Observations in Conclusion
And here are observations in the “Conclusion” portion of the Loudest Voice article that illustrate how and why my unholy alliance concern has merit.
The Solicitor General is the most influential litigant that appears before the Supreme Court:
- it is more successful at the petition and merits stages than others; and
- it is more successful when it is an amicus supporting a party than when it represents a party.
Lawyers take the Solicitor General’s special place at the Court into account, by trying to convince the Solicitor General to support their client as amicus when possible and otherwise trying to convince the Solicitor General to stay out of the case.
We suspect that the Court has not thought much about why it grants virtually all the Solicitor General’s motions for amicus oral argument and denies almost all others:
- in fact, we imagine that the Justices—members of a government institution themselves in their earlier careers and some formerly at the Office of Solicitor General—have not seriously considered the special place they reserve for that Office
Conclusion
The US. v. Miller opinion from the U.S. Supreme Court is one more example of how:
- the Office of Solicitor General takes positions before the U.S. Supreme Court in bankruptcy cases that always support the interests of the U.S. Government as creditor, even when such positions are contrary to the best interests of the entire federal bankruptcy system as a whole; and
- The U.S. Supreme Court adopts the Solicitor General’s positions.
And I call that an “unholy alliance.”
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Footnote 1. This “Loudest Voice” article is by Darcy Covert and Annie J. Wang and is published in Vol. 74, Issue 3, of the Vanderbilt Law Review (April 2021).
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