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Lecturer discusses the power of the Supreme Court

Erwin Chemerinsky, dean and professor of law at the UC Irvine College of Law, spoke on “Formalism Without a Foundation, Stern vs. Marshall” at the University of La Verne College of Law on Feb. 2. Chemerinsky’s remarks dealt with the Supreme Court’s limitation on the ability of bankruptcy courts to decide certain specific issues. His expertise includes constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. / photo by Brittney Slater-Shew

Alex Forbess
Staff Writer

Erwin Chemerinsky, dean and professor of law at the UC Irvine College of Law, discussed “Formalism Without Foundation: Stern v. Marshall” on Feb. 2 at the University of La Verne College of Law.

It was a case where the U.S. Supreme Court needed to decide if bankruptcy courts have constitutional authority to make final judgments.

“What they were trying to figure out is if this act violated the Constitution,” Chemerin­sky said. “They decided that it did on a 5-4 vote.”

Chemernisky asked the audience why the decision ended in a borderline vote. The answer was simple: ideological split.

Second year law students Robert Johnston and Sandy Garcia were surprised how a case like this built such a dilemma.

“It is crazy to even think a case this small could make such an impact,” Garcia said.

According to Chemernisky, Stern v. Marshall involved Vickie Lynn Marshall – better known as model Anna Nicole Smith – filing a counterclaim against Pierce Marshall, claiming he was interfering with her obtaining her deceased husband’s estate while filing for bankruptcy.

Marshall filed a proof of claim, saying he was defamed and engaged in fraud of controlling his father’s assets, Chemernisky said.

The bankruptcy court favored Smith and awarded her millions of dollars in damages, he said. Marshall appealed and said the bankruptcy court lacked jurisdiction because the counterclaim she filed could not be a core proceeding to enact statutory authority.

Chemerinsky said the bankruptcy court believed they had jurisdiction under the Bankruptcy Reform Act of 1978, where Congress stated these courts can serve as alternatives to federal courts and exercise the same judicial power.

The U.S. Supreme Court deliberated to see if these courts can perform such actions.

Although this Act did give the authority to make a final judgment over a counterclaim, it was considered unconstitutional because bankruptcy courts are not Article III judges Chemerinsky explained.

In other words, only Justices of the Supreme Court can practice such power and bankruptcy courts are not qualified to properly perform checks and balances.

Chemerinsky said bankruptcy courts’ salaries are disbursed by Congress—they can either give these judges a raise or cut their pay.

Justices have a standard salary so they cannot be persuaded by additional perks.

“That is how the framers of the Constitution wanted it,” Chemerinsky said.

The audience understood how much this case meant, but it still left some unanswered questions. One of which was determining if the Justices should be provided with lifetime tenure.

An audience member reasserted this question, saying politicians such as former GOP candidate Rick Perry would not appoint any Justice unless they had an 18-year term.

Chemerinsky was skeptical of Perry’s suggestion, but then came to a conclusion that surprised the audience.

“I completely agree with him,” Chemerinsky said. “Chief Justice John Roberts just turned 57. If he retires when he turns 90, he will serve until 2045. Judges should be appointed long enough to get the experience.”

The audience nodded in agreement and seemed to admire how he supported his opinion with accurate facts.

“Chemerinsky is an interesting individual,” said Al Clark, associate vice president of Academic Affairs. “His mind is so clear and he is precise, factual and analytical.”

Alex Forbess can be reached at

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