* “Roberts, in a 20-page dissent, criticized his colleagues for chipping away at the system of checks and balances enshrined in the Constitution and establishing a precedent Congress may use to take other powers from the judiciary.” Hopefully they take away the power of a judge to rewrite the attorneys’ arguments for them, like Roberts did in the Obama Care mandate suit. Or expand the case to take on issues other than those argued like he did in Citizens United. Roberts is hardly the one to be commenting on one branch of the government abusing their power, he is just as power crazy as Obama.
* The “pragmatic” part involving not enough judges to handle the cases is in part to the GOP withholding federal judgeship appointments to spite the President. Who are they spiting? US.
* It is almost a joke to for Roberts to say we are protecting against biases for judical appointees…almost every Supreme Court has ruled on the bases of particular biases from political input..
Sotomayor And Roberts Clash As Supreme Court Expands Power Of Bankruptcy Courts
By Daniel Fisher, May 26, 2015
An otherwise arcane bankruptcy case handed the Chief Justice of the U.S. Supreme Court a bitter defeat at the hands of the court’s second-most junior judge over an issue he considers “sacred,” while the ghost of Anna Nicole Smith no doubt smiled approvingly overhead.
Justice Sonia Sotomayor, in Wellness International v. Sharif, wrote the 6-3 opinion holding that parties in bankruptcy proceedings can consent to allowing a bankruptcy judge decide their cases. This is a big deal for Chief Justice Roberts, who zealously protects the independence of the federal judiciary and wrote the majority opinion in Stern v. Marshall, a 2011 decision rejecting hundreds of millions of dollars in damages a bankruptcy court had awarded Vickie Lynn Marshall, aka Anna Nicole Smith, against her former stepson, Pierce Marshall, over claims he’d interfered with her inheritance from her billionaire husband J. Howard Marshall II.
Stern v. Marshall stripped bankruptcy courts of some of the power Congress had attempted to give them to decide lawsuits and other claims that aren’t strictly part of the process of determining how to split up the assets in a bankruptcy estate. Such side matters must be decided by full-fledged federal judges operating under Article III of the U.S. Constitution, who have protections against political meddling including life tenure and guaranteed salaries, the court ruled in Stern. Bankruptcy judges, in contrast, are authorized by Congress and lack life tenure and salary guarantees.
In Wellness International, however, the majority opened a rather large loophole. If the parties agree to settle their disputes in bankruptcy court, the court ruled, they can waive their right to present their case in front of a so-called Article III judge. Bankruptcies frequently involve outside parties, such as when the trustee in charge of a bankruptcy estate sues to recover money he believes was fraudulently conveyed out of the reach of creditors.
“Adjudication by consent is nothing new,” Sotomayor wrote. As long as Article III judges ultimately oversee the process, litigants can exercise their “personal right” to settle disputes in other courts.
Roberts, in a 20-page dissent, criticized his colleagues for chipping away at the system of checks and balances enshrined in the Constitution and establishing a precedent Congress may use to take other powers from the judiciary.
“The impact of today’s decision may seem limited, but the Court’s acceptance of an Article III violation is not likely to go unnoticed,” Roberts wrote. “The next time Congress takes judicial power from Article III courts, the encroachment may not be so modest—and we will no longer hold the high ground of principle.”
The chief justice’s strong feelings were obvious at oral arguments in January, when he described the power to decide “cases and controversies” under Article III as “our constitutional birthright.”
“To be sitting there in the Supreme Court when the chief justice says `this is our birthright,’ that’s a big thing,” said Ross Martin, a partner with Ropes & Gray and head of the firm’s bankruptcy practice.
Wellness International involved a would-be distributor of nutritional supplements who sued over a failed contract and then found himself liable for hundreds of thousands of dollars in legal fees after failing to comply with discovery requirements. Sharif filed for Chapter 7 bankruptcy, but Wellness International asked the bankruptcy court to declare that a trust he said he oversaw for his mother actually belonged to him. Sharif initially asked the bankruptcy court to decide this matter in his favor, then switched strategies after Stern came down.
The Supreme Court’s decision reversed a Seventh Circuit Court of Appeals decision finding that parties couldn’t consent to such a wavier [sic] because it threatened the “institutional integrity” of the judicial branch. While bankruptcy judges lack some of the protections given Article III judges, Sotomayor wrote, they are hired, fired, overseen and only hear cases referred to them by their life-tenured colleagues.
Largely for practical reasons, the majority ruled, the more numerous bankruptcy judges and magistrates should be able to decide cases related to bankruptcies in order to relieve the pressure on federal district courts. It remanded the case to decide whether Sharif had in fact consented to have the question of his trust decided in bankruptcy court.
Roberts would have none of it. He was joined in dissent by Justice Antonin Scalia as well as Clarence Thomas, who wrote his own dissent.
The friction on the court reflects different views of the importance of strictly insulating the judiciary branch from any hint of political interference. Federal courts are already swamped with litigation and criminal cases and with only 677 district judges and 179 appeals judges, they would be overwhelmed by trying to hear the various disputes handled by the more than 800 bankruptcy judges and magistrates.
This issue also comes up with administrative law, where federal agencies operating under the control of the executive branch have the power to issue and prosecute civil charges using administrative law judges. Critics say that stacks the deck in favor of the government. While defendants can still appeal any decision to an Article III court, the important process of presenting witnesses and evidence occurs before a judge who is theoretically beholden to the executive branch.
Losers in bankruptcy court also can appeal to an Article III court, but most of the process remains in the hands of a bankruptcy judge. Today’s decision raises a tricky tactical question, said Martin of Ropes & Gray: When do you tell a bankruptcy judge you don’t want her to decide your part of the case?
“Is the first thing you tell the judge: `I don’t want you hearing my case?’” Martin told me. The answer is probably yes, he said, but “you absolutely say it in the most polite way possible.”
The implications of such side litigation can be severe. Anadarko Petroleum lost several billion dollars in market value in December 2013 after a bankruptcy court ruled it could be liable for as much as $13 billion in environmental costs tied to its former Tronox unit, which was in bankruptcy. (Anadarko settled with the Environmental Protection Administration earlier this year for $5 billion plus interest.)
Roberts complained the majority took an overly pragmatic approach to a fundamental constitutional question. “Perhaps the majority’s acquiescence in this diminution of constitu-tional authority will escape notice,” he wrote. “Far more likely, how- ever, it will amount to the kind of `blueprint for extensive expansion of the legislative power’ that we have resisted in the past.”
Once Congress knows it can assign federal claims to judges outside Article III with the parties’ consent, nothing would limit its exercise of that power to bankruptcy. Congress may consider it advantageous to allow claims to be heard before judges subject to greater legislative control in any number of areas of federal concern. As for the requirement of con-sent, Congress can find ways to “encourage” consent, say by requiring it as a condition of federal benefits. That has worked to expand Congress’s power before.[snipped]