Today’s opinion in Stern v. Marshall (opinion here, analysis from Lyle Denniston at SCOTUSblog here) is important not just for bankruptcy lawyers and followers of the long-running legal saga of the now-deceased topless dancer Anna Nicole Smith. The Court, per Chief Justice Roberts, declined an invitation to wander further from the basic constitutional principle that the judicial power of the United States is vested only in courts constituted in accordance with Article III.
Oversimplifying a bit, the central issue is whether a federal bankruptcy court can decide a claim arising under state law that becomes intertwined with claims in bankruptcy. Bankruptcy courts are not Article III courts, chiefly because their judges do not have the “good Behavior” tenure required by Article III, Section 1.
Many exceptions have developed to the basic Article III rule, some more legitimate than others. The Court’s opinion contains much doctrinal analysis, but it opens strongly with Article III’s text and supporting commentary from Hamilton and James Wilson. Without quarreling with exceptions established in prior decisions, Roberts' opinion distinguishes those cases and declines to apply to the case at hand the "pragmatic approach" favored by Justice Breyer in dissent. In the end, his opinion comes out in accord with the text’s basic principle: in this case, anyway, the non-Article III bankruptcy court can't exercise the judicial power of the United States.
It’s interesting to contrast the majority opinion with Justice Scalia’s concurrence. Scalia would prefer to attack head-on various exceptions to the Article III rule developed in the past and not (in his view) reconcilable with the text’s original meaning. The Roberts opinion instead employs a sort of “minimalist” originalism, not attempting to align the whole doctrinal field with the basic textual command, but declining to erode the text any further.
Posted at 3:00 PM