Tuesday, July 19, 2011

More Inside Baseball on Anna Nicole

Caution: bankruptcy/Supreme-Court wonkery.  I've been prepping up the Supreme Court's opinion in Stern v. Marshall (aka "the Anna Nicole Smith case") for teaching in my bankruptcy class next spring.  Supermarket tab readers will remember that one as the saga of the young blonde, the (perhaps) besotted old husband and the outraged heir (doesn't narrow things down very much, does it?).  I had remarked before on how much the decision seemed to me a precision strike, designed to take the money  away from the (estate of) the young blond and secure  it to the outraged heir.

Why such close cutting?  On second read, it occurred to me that when judges engaged in such precision, it's usually for one very good reason: they are trying to save their majority.  This was, after all, yet another of those 5-4 opinions that do so much to define the Supreme Court.  If "we're not saying" this and "we're not saying" that, then there is a strong inference that we are not saying a lot of things that would lose us that fifth vote--in this case, presumably, the Supreme swinger, Anthony Kennedy, who seems to have come to revel in his position as the man in the middle, whose opinion can never quite be predicted (or, come to that, understood).

I tried this idea out on my friend Ignoto, much younger and much closer to the crack of bodies than I. Ignoto demurs:

My take is different, somewhat. I don't think he cares about sex and octogenarian billionaires. I think he, and Kennedy, think that  bankruptcy courts are getting all the good cases, leaving prisoner  habeas, immigration and social security appeals to "real" judges.   Think about all the press on the vanishing trials. Not a problem bankruptcy.

To me, the language that most sounds like it comes from the heart is the language about preserving the integrity of Article III judges' hold over the judicial power. Note that this opinion comes after a spectacularly unsuccessful attempt to get Congress to raise judge's pay. In that effort, Article IIIs pled high workload, but someone looked at bankruptcy courts and said: Gee, they do they same thing you do, do more of it, and do it for less. Note that Roberts goes out of his way to say the counterclaim was within what Congress said in 157, but that 157 was unconstitutional. It could be viewed as a shot back.

Afterthought: I can claim a weird sort of godfatherhood to the Anna Nicole case. The judge who started it all, Sam Bufford in Los Angeles, was my successor--the guy who took over my docket after I left back in 1984. Nobody doubts that Sam is a serious guy, although I think there is room for reasonable people to differ over whether he was right in the first place. One possible solution would have been to abstain--to say "I don't know whether I have jurisdiction or not but this a matter best settled in courts of Texas, so go fight it out there. And report back to me when you are done." But then, as they say in the novel-writing trade, there would have been no story.

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