The Supreme Court, the Solicitor General, and Statutory Interpretation

Abstract

The case studies in the preceding part of the book frequently touched on the role of the Solicitor General in bankruptcy cases. If the principal thesis of the book is that the Court has underenforced the Bankruptcy Power, the principal explanation is that the Code's failure to create an agency with responsibility for administering the Code has led to a vacuum of expertise that has left the Court lacking the kind of information it needs to apprehend the importance of the Bankruptcy Power to the modern economy. The obvious question, though, is why the Solicitor General has not played that role. After all, with the sole exception of Granfinanciera , the Solicitor General did participate in each of the cases that the case studies examine in detail. As I illustrate below, the Solicitor General's role has been almost diametrically opposed to the system-buttressing role that an agency would produce. In every one of those cases except Marathon, where it appeared (unsuccessfully) to defend the constitutionality of the Code, the Solicitor General has opposed a broad interpretation of bankruptcy power. Moreover, the evidence indicates that the hostile posture of the Solicitor General has had a cognizable effect on the decisions that the Court in fact has rendered. The Court does not always defer to the Executive. Still, when the Solicitor General can convince the Court that its position is reasonable and that a contrary outcome would harm important interests, the Court has given the benefit of the doubt to the Solicitor General's narrower interpretation. This is true even when (as in BFP ) that result does considerable injury to the language of the statute. Indeed, I think that is more likely to be true in bankruptcy cases than in other private law cases, because the Solicitor General's view is less likely to reflect the agency bias apparent in cases in which an agency defends its own programs. Other writers have noticed that the Supreme Court often defers to the government in bankruptcy cases in which the Government is a party (Rasmussen 1993; Lawless 1996, 114–115), but what they have not noticed is the pervasiveness of the Solicitor General's role as a party and as an amicus in bankruptcy cases.