Law Review: Block-Lieb- What Congress Had to Say: Legislative History as a Rehearsal of Congressional Response to Stern V. Marshall

Abstract: Congress regularly makes judgment calls of constitutional dimension. One important example of the interaction between the constitutional analysis of the Court and that of Congress involves disputes over the broad grant of jurisdiction exercised by untenured bankruptcy judges. The legislative history preceding the Supreme Court’s decisions in Northern Pipeline Co. v. Marathon Pipe Line Co. and Stern v. Marshall suggest that Congress’s constitutional interpretation is different in kind from that of the Supreme Court. Because Congress is a political, not a deliberative, body, its constitutional analysis is infused with political judgments. The political compromises reached in enacting the bankruptcy court provisions in 1978 and 1984 may well have contributed to the Court’s constitutional rulings. This essay looks at congressional interpretation of the constitutionality of proposed bankruptcy legislation. Its focus is on the politics of bankruptcy court design and the implications of this political brand of constitutional interpretation for Congress’s response, first, to Northern Pipeline and, eventually, to Stern v. Marshall. Consideration of what Congress had to say on the topic of the constitutionality of an untenured bankruptcy court can help predict congressional reaction to the Court’s most recent decision in Stern. Broader insights into the Court’s Article III jurisprudence, as well as the interaction of the constitutional interpretation of Congress and the Supreme Court in this context, are also suggested, albeit tentatively given the bankruptcy-centered focus of this essay.

For a copy of the opinion, please see:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2041597