Justice Ruth Bader Ginsburg died last Friday. She was 87. Politics aside, she was a legal giant on the world’s most powerful court . . . That’s a cheap introduction to our first blog post since March, as I simply adapted it from the opening lines of our February 2016 tribute to Justice Scalia. The parallels are bittersweet because, famously, Scalia and Ginsburg were close friends; the parallels are frustrating because of their similarly enormous political ramifications.

On the one hand, ours is, again, a modest purpose: Cataloging the majority bankruptcy opinions of a legendary jurist who is known for so much more. On the other hand, if I was up to the task of conveying insight about Justice Scalia through a bankruptcy focus–it took me 66 revisions to contain him in a single post–I’m not up to the task for Justice Ginsburg. Whereas a Scalia tribute starts with and can even end with the writing, a Ginsburg tribute can certainly focus on the writing but can’t help but be overwhelmed by a biography that I’m hardly qualified to comment on. Put another way, and hopefully without trivializing the distinction, in 2004, my DC-based in-laws bought me Scalia Dissents as a Christmas present. It was a well-intentioned, perfectly nice gift for a second year law student, but I’d forgive them if they forgot they gave it to me. Contrast that with Christmas 2018: they bought my wife–not me–an “In Ruth We Trust” coffee cup, and my little girls giggled in recognition of the “Notorious RBG” as we opened our stockings. That’s an altogether different cultural level.

Thus, with less fanfare, but as much care, here we catalog Justice Ginsburg’s seven majority bankruptcy opinions, from least to most cited.

7. Ritzen Grp., Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582 (2020)

Ritzen was Justice Ginsburg’s first 2020 opinion and is among the five majority opinions that she delivered in her last year on the Court. Typical of many of the Court’s bankruptcy opinions, Ritzen was a unanimous decision.

Expanding on Bullard v. Blue Hills, which we blogged about here and which addressed the issue of whether an order denying confirmation of a plan is final, Justice Ginsburg addresses in Ritzen the issue of finality and appealability in stay relief proceedings, particularly where a lower court, as in Ritzen, denies a creditor’s motion for stay relief.

Reassuring for any bankruptcy practitioner who has struggled with an interlocutory appeal decision on the 14th day is Ritzen‘s recognition of and discussion about how the “ordinary understanding of ‘final decision’ is not attuned to the distinctive character of bankruptcy litigation.”

With that in mind and without departing from the guidance in Bullard, Justice Ginsburg writes for the Court that “adjudication of a motion for relief from the automatic stay forms a discrete procedural unit within the embracive bankruptcy case. That unit yields a final, appealable order when the bankruptcy court unreservedly grants or denies relief.”

6. Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 547 U.S. 651 (2006)

Howard, a 6-3 decision, had Justice Ginsburg parsing the scope of Sections 507(a)(4) and 507(a)(5) of the Bankruptcy Code to determine whether an insurance carrier’s claims for unpaid workers’ compensation premiums owed by a debtor-employer are entitled to priority treatment. The Court granted cert to resolve a split among the 6th, 8th, 9th, and 10th Circuits.

Ultimately, the Court held that “premiums owed by an employer to a workers’ compensation carrier do not fit within § 507(a)(5),” a provision which entitles to priority certain “unsecured claims for contributions to an employee benefit plan.” The decision is guided by “the equal distribution objective underlying the Bankruptcy Code, and the corollary principle that provisions allowing preferences must be tightly construed.”

Justice Ginsburg reasoned that “[a]lthough the question is close, we conclude that premiums paid for workers’ compensation insurance are more appropriately bracketed with premiums paid for other liability insurance, e.g., motor vehicle, fire, or theft insurance, than with contributions made to secure employee retirement, health, and disability benefits.” She explains further that, unlike “pension provisions or group life, health, and disability insurance plans — negotiated or granted as pay supplements or substitutes — workers’ compensation prescriptions have a dominant employer-oriented thrust: They modify, or substitute for, the common-law tort liability to which employers were exposed for work-related accidents.”

5. Harris v. Viegelahn, 575 U.S. 510 (2015)

Harris, another unanimous decision, has Justice Ginsburg confirming, in the context of a narrower procedural context, the answer to the question that all of our Chapter 7 debtor clients ask, without fail: “Once I file, will the trustee get my future wages?” To be sure, Justice Ginsburg confirms the truism that a “Chapter 7 estate does not include the wages a debtor earns or the assets he acquires after the bankruptcy filing.”

However, the question in Harris was more particular: “When a debtor initially filing under Chapter 13 exercises his right to convert to Chapter 7, who is entitled to post-petition wages still in the hands of the Chapter 13 trustee?” Even more specifically, “[m]ay the [Chapter 13] trustee distribute the accumulated wage payments to creditors as the Chapter 13 plan required, or must she remit them to the debtor?”

The Court held that, “under the governing provisions of the Bankruptcy Code,” and barring a bad faith conversion by the debtor, a “debtor who converts to Chapter 7 is entitled to return of any postpetition wages not yet distributed by the Chapter 13 trustee.”

4. Assocs. Commercial Corp. v. Rash, 520 U.S. 953 (1997)

Rash is the § 506(a) valuation opinion, a Chapter 13 case that, like Till, pervades Chapter 11 discussions. As often as I see Rash cited, I didn’t realize that Justice Ginsburg delivered the 8*-1 opinion for the Court (the * reflecting how Justice Scalia joined all but footnote 4 of the opinion) (see below).

The Court granted cert to resolve a split among the 1st, 2nd, 5th, 6th, 7th, 8th, and 9th Circuits. Justice Ginsburg stated the issue as follows: “[W]hen a debtor, over a secured creditor’s objection, seeks to retain and use the creditor’s collateral in a Chapter 13 plan, is the value of the collateral to be determined by (1) what the secured creditor could obtain through foreclosure sale of the property (the “foreclosure-value” standard); (2) what the debtor would have to pay for comparable property (the “replacement value” standard); or (3) the midpoint between these two measurements?” 

She starts by dispensing with the Fifth Circuit’s parsing of the awkward phrasing in the first sentence of § 506(a)–“the creditor’s interest in the estate’s interest”–finding that, “[e]ven read in isolation, the phrase imparts no valuation standard.” At most, that phrase points to the bifurcation of the secured and unsecured portion of a claim. Instead, Justice Ginsburg points to the second sentence in § 506(a) for the valuation standard, explaining that “[a]s we comprehend §506(a), the ‘proposed disposition or use’ of the collateral is of paramount importance to the valuation question.”

The “proposed disposition or use” by the Rash debtor was to retain the collateral in a cramdown plan. Thus, the Court concluded that the “replacement value standard” should apply, as opposed to the foreclosure standard chosen by Justice Stevens in his dissent, when a debtor proposes to retain collateral instead of proposing to surrender it.

As an aside, Justice Ginsburg writes in Rash‘s footnote 4 that “[w]e give no weight to the legislative history of §506(a), noting that it is unedifying, offering snippets that might support either standard of valuation.” Without any explanation, Justice Scalia joined all but footnote 4 of the opinion. Despite Justice Scalia’s silence, it’s well understood that his problems with legislative history were so significant that he wanted no part of an opinion, even one that’s adverse to legislative history in a particular case, that implied that legislative history could ever be “enlightening.”

3. Marshall v. Marshall, 547 U.S. 293 (2006)

This is the other Marshall. If I look back over my seminar notes or materials from 2011 to 2012, I’m sure I’ll file where someone like Eric Brunstad (who was on brief for Mr. Marshall) told us all about how Anna Nicole Smith first became jurisprudentially famous in Marshall v. Marshall before she became seminar-famous five years later in Stern v. Marshall. And if I ever knew that Justice Ginsburg authored Stern’s 9-0 precursor, then I had forgotten about it until this morning. 

Click the link if you’d like a 26 page reminder of Justice Ginsburg’s role in the Stern v. Marshall saga. In short, the Court, resolving a four-way circuit split, reversed the Ninth Circuit’s application of the “probate exception” to federal jurisdiction, a longstanding but judicially-created exception, explaining that, while the exception is intended to reserve to the state courts control over wills and estates issues, it does not sweep so broadly as to remove from federal jurisdiction every suit that arises out of a probate matter. 

2. Kontrick v. Ryan, 540 U.S. 443 (2004)

Justice Ginsburg’s two most cited bankruptcy decisions involve procedural and/or substantive disputes about objections to discharge and dischargeability. In Kontrick, another unanimous decision, Justice Ginsburg considered (i) whether the deadlines in Bankruptcy Rule 4004 for objecting to discharge are jurisdictional and, regardless, (ii) when, if ever, a litigant waives a Rule 4004 timeliness issue in discharge litigation. The Court granted cert to resolve a split between the 2nd, 7th, and 11th Circuits.

As to the former issue, Justice Ginsburg gets right to the point: “In short, the filing deadlines prescribed in Bankruptcy Rules 4004 and 9006(b)(3) are claim-processing rules that do not delineate what cases bankruptcy courts are competent to adjudicate.” In other words, it is “axiomatic” that Rule 4004 and, for that matter, the Bankruptcy Rules are not jurisdictional. Before turning to the second issue, Justice Ginsburg gently scolds that “[c]larity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.”

As for the latter issue, Justice Ginsburg rejects the argument raised by Kontrick, the debtor, that the Bankruptcy Rules “have the same import as provisions governing subject-matter jurisdiction.” To be sure, he didn’t argue that the Rules are jurisdictional, per se. Rather, he argued that Bankruptcy Rule 4004 should be treated as if it’s jurisdictional so that, like subject matter jurisdiction, it can be raised at anytime. He had to make that argument. Although there was no doubt that Ryan filed an untimely § 727 complaint, Kontrick failed to raise the timeliness issue in his answer, failed to raise it in his motion for summary judgment, and did not raise it until after he lost a trial.  

As Justice Ginsburg concludes, “[n]o reasonable construction of complaint-processing rules, in sum, would allow a litigant situated as Kontrick is to defeat a claim, as filed too late, after the party has litigated and lost the case on the merits.” The lesson: raise your affirmative defenses early and often.

1. Kawaauhau v. Geiger, 523 U.S. 57 (1998)

Justice Ginsburg’s most cited bankruptcy opinion–perhaps a function of its age–involved the question of whether a “debt arising from a medical malpractice judgment, attributable to negligent or reckless conduct,” can amount to a “willful and malicious injury by the debtor to another” under § 523(a)(6) and, thus, be excepted from discharge.

The Court granted cert to resolve a split between the 8th Circuit, on the one hand, and the 6th and 7th Circuits, on the other hand.

As in most of Justice Ginsburg’s opinions–her bankruptcy opinions for sure–she leads with a clear statement of the issue: “Does § 523(a)(6)’s compass cover acts, done intentionally, that cause injury (as the Kawaauhaus urge), or only acts done with the actual intent to cause injury (as the Eighth Circuit ruled)?”

With no hesitation or dispute, the Court affirmed the Eighth Circuit’s view, holding that the “word ‘willful’ in (a)(6) modifies the word ‘injury,’ indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead ‘willful acts that cause injury.'”

Quoting a prior decision, Justice Ginsburg explains that the alternative “construction” “would be incompatible with the ‘well-known’ guide that exceptions to discharge ‘should be confined to those plainly expressed.'” For example, she warns, if “willful” modified the “act,” then garden variety breaches of contract would always be excepted from discharge. 

Finally, Justice Ginsburg provides further support for the decision by pointing out that the alternative construction would also render superfluous other of the discharge exceptions, including § 523(a)(9) and (12). 


Here is where I’ll provide a little trivia to liven up what is otherwise a rather bland cataloging of Justice Ginsburg’s bankruptcy opinions. That is, I’m a fan of Russian born Vladimir Nabokov, the trilingual Russian-American novelist who is (in)famous for his novel Lolita, wrote his most canonical works in English, and is considered one of the great novelists of the 20th Century. Thus, I found it very interesting to learn this week that not only was Justice Ginsburg Nabokov’s most famous student (with competition in that regard only from novelist Thomas Pynchon), but she points to Nabokov–her literature professor at Cornell in the 1950s–as having had an “enormous influence” on her writing.

LitHub recounts a quote from Justice Ginsburg’s 2016 interview with the New York Times: “At Cornell University, my professor of European literature, Vladimir Nabokov, changed the way I read and the way I write. Words could paint pictures, I learned from him. Choosing the right word, and the right word order, he illustrated, could make an enormous difference in conveying an image or an idea.” In another interview: “He was a man in love with the sound of words . . . He changed the way I read, the way I write. He was an enormous influence.”

By all accounts, Nabokov was as gripping and influential as he was critical and dismissive. Nabokov didn’t live long enough to see Justice Ginsburg’s 1993 appointment. Thus, one can only guess what he would have thought about her writings for the Court, whether the bankruptcy opinions or those that she’s more famous for. Of course, Justice Ginsburg was a great writer in the traditions of the Supreme Court. But, unlike Justice Scalia’s or Justice Gorsuch’s bankruptcy opinions, Justice Ginsburg’s bankruptcy opinions are not very quotable. There is none of the “jiggery-pokery,” “pure applesauce,” or “argle-bargle” from Scalia’s non-bankruptcy opinions or the “Dewsnuppian departure[s]” or “Pontiac Trans Ams” of Justice Gorsuch’s bankruptcy opinions. While her personality, wit, and sense of humor very well might come through in her other opinions, her bankruptcy opinions are formal, precise, structured, methodical, and businesslike but, dare I say, dry or even cold. [Update on 9/28/20: In fairness, Bill Rochelle’s Monday post includes a discussion of Justice Ginsburg’s bankruptcy dissents, including those in Rotkiske v. Klemm (an FDCPA case) and Schwab v. Reilly (an exemptions case), a format that is more ripe for rhetorical flourishes. Even in her dissents, though, Justice Ginsburg chose precision over flourish.]

However, we’ve endeavored over the last 5 years to find as many excuses as we can to blog about the Supreme Court and bankruptcy. And from that vantage point, limited as it might be, I’ll tribute Justice Ginsburg by simply observing that her bankruptcy opinions have none of the veiled disdain, explicit condescension, or “can’t be bothered” impatience that characterizes some of the Supreme Court’s other bankruptcy opinions. There is none of the lecturing, on-the-page yawns, or, as we’ve pointed out before, that tendency of the Court to decide bankruptcy issues via unnecessary analogies to other, more “sophisticated” areas of the law or, worse (but only occasionally), to trivialize bankruptcy courts and bankruptcy practice–don’t get me started about Bullard v. Blue Hills!

Instead, I get the real sense in her bankruptcy opinions that Justice Ginsburg treated the litigants, the lower courts, and their accompanying bankruptcy issues with the same dignity and seriousness that she extended to the more newsworthy or “material” issues of our time. I can only hope that her friends and family find equal dignity over the next week and those that follow.

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