It’s difficult to imagine two more different pieces of circuitry: The Supreme Court is hard-wired to suck out the drama from even the most emotionally charged conflicts. Bush v. Gore, the partial-birth-abortion case, the enemy-combatant cases—each was briefed and argued like, well, like a bankruptcy case. Life, death, anthrax scares: The court somehow scatters its own unique brand of boringness and uptightness over every drama it touches.
Whereas Anna Nicole Smith exists exclusively for psychodrama. If she isn’t wearing something sparkly or saying something filthy, she might not exist at all. Which is why this morning’s collision between the two worlds is so compelling. It’s probably well worth the hundreds of millions of dollars in question for Anna to rein in the jubblies, dress in sober black, and sit still for an hour. She doesn’t give interviews or sign autographs as she enters or exits the marble tomb, although some reporters are mowed flat in the scrum. In the first dispute today—the ethos of Anna Nicole vs. the ethos of the Supreme Court—the court is the clear winner.
In fact, no one even says “Anna Nicole” today. They call her “Vickie Lynn” if they refer to her at all. The case is Marshall v. Marshall, a meandering Dallas retread involving the 26-year-old stripper Anna once was; her 89-year-old oil-baron husband, J. Howard Marshall (they met when he was wheeled into her strip bar); their short (14 months), happy marriage; and the ensuing 10-year battle over his will. On the one side is Anna, former Playmate of the Year, who was once described by her former husband as “un-teachable” and by the judge most sympathetic to her claims as “illiterate.” On the other is E. Pierce Marshall, heir to his father’s fortune, whose alleged schemes to carve her out of his dying dad’s financial life make Larry Hagman’s J.R. Ewing look like a Teletubby.
This litigation has seen the inside of four courthouses already. First there was the Texas probate court, which determined that Anna was entitled to nothing, save the $6 million in gifts she had already earned while her husband was alive. Then the California federal bankruptcy court weighed in, when Anna declared bankruptcy there. That court found that the widow was entitled to $449 million, plus $25 million in punitive damages, for E. Pierce’s alleged acts of fraud in messing up her inheritance. Then a California district court reduced that amount to $88 million, but nevertheless concluded that J. Howard loved his wife and planned to take care of her, and that his son and weasely lawyers had cooked the documents and fooled the old man as he lay dying. The 9th Circuit Court of Appeals in turn reversed that decision, contending that the federal bankruptcy court in California had no business meddling into the affairs of a Texas probate court in the first place.
Today’s dispute is about the boundaries between state and federal courts—whether there is a zone outside ordinary federal court jurisdiction known as the “probate exception.” (Try dancing naked to that.) Even though federal bankruptcy courts have rather broad jurisdiction, they have, for centuries, butted out in the areas of domestic relations and probate—under the theory that state courts are better-positioned to decide them. The 9th Circuit said the bankruptcy court should butt out here, meaning Anna gets nothing. She appealed, and the Supreme Court granted certiorari, thus making for the happiest crop of law clerks in modern memory.
Kent L. Richland, arguing on Anna’s behalf, is exactly the sort of silver-haired, silver-tongued guy you’d have cast in the reality show. He doesn’t appear to be flapped, even when Justice Antonin Scalia wonders, just moments into his presentation of an argument far broader than the one he needs to make: “Do you want to stand on that position or do you have a lesser position? One that might cause you to win?”
Richland smiles and explains simply that this case has nothing to do with wills. J. Howard tried to create an “inter vivos” trust for his young wife while he was still alive. His son apparently blocked that. “This has nothing to do with probate.”
Speaking of wealthy Texas oilmen whose lawyers can justify just about anything, the president has joined this appeal on Anna’s side. Assistant to the Solicitor General Deanne Maynard has 10 minutes to argue (not surprisingly) for giving more expansive jurisdiction to federal courts. The justices question her very little as she argues that the reason people create trusts—as opposed to wills—is precisely that they want to avoid probate. So, why is this a probate matter at all?
Eric Brunstad Jr. represents E. Pierce this morning, and while ordinarily it helps to be tall, young, and in possession of a booming voice, he appears to have lost most of the justices at “hello.” Justice Stephen Breyer, for instance, is quick to hop up onto his white charger to defend Anna Nicole. He positively emotes as he quotes the findings of the California District Court judge who had found that Brunstad’s clients “had forged three pages of J. Howard Marshall’s will,” among other things.
Brunstad’s argument, repeated several times today, is that there was no way for the California bankruptcy court to go around handing fistfuls of money to Anna without interfering with the ruling of the Texas probate court. When he is pressed, by Justice David Souter, on why the decision of the Texas court was necessarily invalidated, Brunstad replies that under Texas law, no one can collect from an estate plan without invalidating the entire plan. It’s something of a legal Escher staircase: Any judgment that implicates an estate plan necessarily invalidates that plan, which makes it, by law, an invalid judgment. In Texas.
Breyer asks whether the Texas probate court had all the documents available to the California bankruptcy court. That and more, says Brunstad. (Richland will later dispute this.)
Then Breyer has another run at him. J. Howard Marshall “said go draw it up so I can give gifts to her while we are married. Do it. And they never did!” Anna, who has seemingly always relied upon the kindness of strangers, is further rewarded when Breyer scolds Brunstad: “They hired private detectives to keep her from his bedside … this is quite a story.”
Souter makes it even plainer. Why isn’t she entitled to go to court and claim, “I just want some money from this guy”? On and on they go, beating the heck out of Brunstad. Scalia hands off to Breyer who hands off to Chief Justice John Roberts, who passes it back to Ginsburg. It’s a rare team event from the court, and Brunstad does an admirable job standing his ground, even as it’s slipping away from under him.
It seems cruel to report that Anna Nicole then stood and exited the courtroom, leaving the building by a side door and again granting no interviews. I would love to tell you that she did something, anything, to distinguish herself from the thousands of appellants who have brought their cases into these marble walls. But the court has worked its magical spell of blandness, even upon Anna, and she is just another litigant with a probate dispute today. She has stepped into the only place in America where her breasts have no power.
J. Howard must be spinning in his grave.