The Marshall v. Marshall Oral Argument
on Mar 1, 2006 at 9:56 pm
I thought I would add a few thoughts on the argument in the Marshall v. Marshall (Anna Nicole Smith) case in which we are co-counsel to the respondent, and which has gotten so much press coverage because of the identity of the petitioner.
I thought that the case was argued very well all around. Four things strike me from the inside-baseball perspective of Supreme Court advocacy. First, this was an example of an instance in which the Justices give some insight into the reason they took the case, which can vary from person to person. Justice Ginsburg mentioned the “vast confusion” in the lower courts regarding the scope of the probate exception to federal bankruptcy law, which is the classic basis for a cert. grant. Justice Breyer, on the other hand, kept coming back to the bankruptcy court’s findings of supposed gross misconduct by the respondent – which were actually entered principally as a discovery sanction, so the discussion in the courtroom was a little misleading for people who hadn’t read the briefing or record – giving the sense that he may have been motivated by an impression that she had suffered an injustice.
Second, the Justices seemed to hold a variety of different views on how broadly to approach the issues in the case – i.e., whether to issue a definitive ruling on the scope of the exception or just deal with the facts of this case. At one point, when the petitioner’s lawyer was arguing that no exception applies in bankruptcy cases, Justice Scalia asked whether he had a narrower argument, “one that has a chance of winning.” On the other hand, Justice Stevens seemed very interested in clearing away the underbrush of dictum in prior Supreme Court opinions on the issue and stating a clear, definitive rule. It’s impossible to tell, I think, precisely where they will come out.
Third, it’s interesting to see how issues and themes that are important to particular Justices continually come up case after case. Justice Ginsburg expressed the strong view that the relationship between state probate and federal courts was a straightforward matter of res judicata because (and this is a recurring theme for her) parallel state and federal proceedings happen all the time; the first judgment to be entered simply prevails. (As she noted, this may be a strong argument for the respondent if the case is remanded, because the probate judgment in the respondent’s favor finding all of Anna Nicole’s allegations false was entered before the federal district court’s judgment in her favor; the principal dispute is over whether the bankruptcy court’s judgment was on a matter in its “core” jurisdiction and counts for res judicata purposes.)
Fourth, Justice Alito asked no questions. He asked one question in the campaign finance case argued that day. And according to press reports he asked only one question in the Texas redistricting case today. On the other hand, I had heard that he was relatively active the week before. His vote replacing Justice O’Connor’s is obviously very important in the political cases in particular, and he simply did not tip his hand.
