(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GONZALEZ v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 06–11612. Argued January 8, 2008—Decided May 12, 2008
If the parties consent, a federal magistrate judge may preside over the
voir dire and jury selection in a felony criminal trial. Peretz v. United
States, 501 U. S. 923, 933. Before petitioner’s federal trial on felony
drug charges, his counsel consented to the Magistrate Judge’s presid-
ing over jury selection. Petitioner was not asked for his own consent.
After the Magistrate Judge supervised voir dire without objection, a
District Judge presided at trial, and the jury returned a guilty verdict
on all counts. Petitioner contended for the first time on appeal that it
was error not to obtain his own consent to the Magistrate Judge’s
voir dire role. The Fifth Circuit affirmed the convictions, concluding,
inter alia, that the right to have a district judge preside over voir dire
could be waived by counsel.
Held: Express consent by counsel suffices to permit a magistrate judge
to preside over jury selection in a felony trial, pursuant to the Federal
Magistrates Act, 28 U. S. C. §636(b)(3), which states: “A magistrate
judge may be assigned such additional duties as are not inconsistent
with the Constitution and laws of the United States.” Under Gomez
v. United States, 490 U. S. 858, 870, 875–876, and Peretz, supra, at
933, 935–936, such “additional duties” include presiding at voir dire
if the parties consent, but not if there is an objection. Generally,
where there is a full trial, there are various points at which rights ei-
ther can be asserted or waived. This Court has indicated that some
of these rights require the defendant’s own consent to waive. See,
e.g., New York v. Hill, 528 U. S. 110, 114–115. The Court held in
Hill, however, that an attorney, acting without indication of particu-
lar consent from his client, could waive his client’s statutory right to
a speedy trial because “[s]cheduling matters are plainly among those
for which agreement by counsel generally controls.” Ibid. Similar to
2 GONZALEZ v. UNITED STATES
Syllabus
the scheduling matter in Hill, acceptance of a magistrate judge at the
jury selection phase is a tactical decision well suited for the attor-
ney’s own decision. The presiding judge has significant discretion
over jury selection both as to substance—the questions asked—and
tone—formal or informal—and the judge’s approach may be relevant
in light of the approach of the attorney, who may decide whether to
accept a magistrate judge based in part on these factors. As with
other tactical decisions, requiring personal, on-the-record approval
from the client could necessitate a lengthy explanation that the client
might not understand and that might distract from more pressing
matters as the attorney seeks to prepare the best defense. Petitioner
argues unconvincingly that the decision to have a magistrate judge
for voir dire is a fundamental choice, cf. Hill, supra, at 114, or, at
least, raises a question of constitutional significance so that the Act
should be interpreted to require explicit consent. Serious concerns
about the Act’s constitutionality are not present here, and petitioner
concedes that magistrate judges are capable of competent and impar-
tial performance when presiding over jury selection. Gomez, supra,
at 876, distinguished. Pp. 2–12.
483 F. 3d 390, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined.
SCALIA, J., filed an opinion concurring in the judgment. THOMAS, J.,
filed a dissenting opinion.
Cite as: 553 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–11612
_________________
HOMERO GONZALEZ, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 12, 2008]
JUSTICE KENNEDY delivered the opinion of the Court.
If the parties consent, federal magistrate judges may
preside over the voir dire and selection of prospective
jurors in a felony criminal trial. Peretz v. United States,
501 U. S. 923, 933 (1991). This case presents the question
whether it suffices for counsel alone to consent to the
magistrate judge’s role in presiding over voir dire and jury
selection or whether the defendant must give his or her
own consent.
Homero Gonzalez was charged in the United States
District Court for the Southern District of Texas on five
felony drug offense counts. He is the petitioner here. At
the outset of jury selection, the parties appeared before a
Magistrate Judge. The Magistrate Judge asked the attor-
neys to approach the bench. After they complied, the
Magistrate Judge said: “I need to ask the parties at this
time if they are going to consent to having the United
States Magistrate Judge proceed in assisting in the jury
selection of this case.” App. 16. Petitioner’s counsel re-
sponded: “Yes, your Honor, we are.” Ibid. The Magistrate
Judge asked if petitioner was present and if he needed an
2 GONZALEZ v. UNITED STATES
Opinion of the Court
interpreter. Petitioner’s counsel answered yes to both
questions. Petitioner was not asked if he consented to the
Magistrate Judge’s presiding. The record does not permit
us to infer this or even to infer that petitioner knew there
was a right to be waived. The Magistrate Judge then
supervised voir dire and jury selection. Petitioner made
no objections to the Magistrate Judge’s rulings or her
conduct of the proceedings. A District Judge presided at
the ensuing jury trial, and the jury returned a verdict of
guilty on all counts.
Petitioner appealed, contending, for the first time, that
it was error not to obtain his own consent to the Magis-
trate Judge’s presiding at voir dire. The United States
Court of Appeals for the Fifth Circuit affirmed the convic-
tions. The court concluded petitioner could not show the
error was plain and, furthermore, there was no error at
all. It held the right to have an Article III judge preside
over voir dire could be waived by petitioner’s counsel. 483
F. 3d 390, 394 (2007). The Courts of Appeals differ on this
issue. Compare ibid., with United States v. Maragh, 174
F. 3d 1202, 1206 (CA11 1999) (requiring personal and
explicit consent from the defendant); see also United
States v. Desir, 273 F. 3d 39, 44 (CA1 2001) (magistrate
judge may conduct jury selection unless the defendant or
his attorney registers an objection). We granted certiorari.
551 U. S. ___ (2007). We agree that there was no error
and hold that petitioner’s counsel had full authority to
consent to the Magistrate Judge’s role.
The Federal Magistrates Act, 28 U. S. C. §631 et seq.
(2000 ed. and Supp. V), permits district courts to assign
designated functions to magistrate judges. For example,
magistrate judges are authorized to: issue orders concern-
ing release or detention of persons pending trial; take
acknowledgments, affidavits, and depositions; and enter
sentences for petty offenses. §636(a) (2000 ed. and Supp.
V). They also may hear and determine, when designated
Cite as: 553 U. S. ____ (2008) 3
Opinion of the Court
to do so, any pretrial matter pending before the district
court, with the exception of certain specified motions.
Magistrate judges may also conduct hearings and propose
recommendations for those motions, applications for post-
trial criminal relief, and conditions of confinement peti-
tions. §636(b)(1) (2000 ed.). If the parties consent, they
may conduct misdemeanor criminal trials and civil trials.
§§636(a)(3) and (c)(1).
The statutory provision of direct applicability in the
present case is §636(b)(3). It states: “A magistrate judge
may be assigned such additional duties as are not incon-
sistent with the Constitution and laws of the United
States.” The general, nonspecific terms of this paragraph,
preceded by text that sets out permissible duties in more
precise terms, constitute a residual or general category
that must not be interpreted in terms so expansive that
the paragraph overshadows all that goes before.
In two earlier cases the Court considered the question of
magistrate judges presiding over the jury selection process
in felony trials. In Gomez v. United States, 490 U. S. 858
(1989), the District Judge delegated the task of selecting a
jury to a Federal Magistrate Judge. Defense counsel
objected, but the objection was overruled. The Court noted
that “[a] critical limitation on [the magistrate judge’s]
expanded jurisdiction is consent,” id., at 870, and held
that presiding, over an objection, at the preliminary selec-
tion phase of a jury trial in felony cases is not among the
additional duties that a magistrate judge may assume, id.,
at 875–876.
In Peretz v. United States, supra, the Court again con-
sidered whether a magistrate judge could preside over voir
dire in a felony case. In that instance, however, defen-
dant’s counsel, upon being asked by the District Court at a
pretrial conference (with the defendant present) if there
was any objection to having jury selection before a magis-
trate judge, responded, “ ‘I would love the opportunity.’ ”
4 GONZALEZ v. UNITED STATES
Opinion of the Court
Id., at 925. Defense counsel later advised the Magistrate
Judge that the defendant consented to the process. The
Court clarified that in a felony trial neither the Act nor
Article III forbids supervision of voir dire by a magistrate
judge if both parties consent. Id., at 935–936.
Taken together, Gomez and Peretz mean that “the addi-
tional duties” the statute permits the magistrate judge to
undertake include presiding at voir dire and jury selection
provided there is consent but not if there is an objection.
We now consider whether the consent can be given by
counsel acting on behalf of the client but without the
client’s own express consent.
At first reading it might seem that our holding here is
dictated by the holding in Peretz. In Peretz, it would ap-
pear the accused was aware of the colloquy between the
District Judge and defense counsel and the formal waiver
before the Magistrate Judge. On this premise Peretz
might be read narrowly to hold that a defendant may
signal consent by failing to object; and indeed, the peti-
tioner here seeks to distinguish Peretz on this ground.
Brief for Petitioner 41–42. We decide this case, however,
on the assumption that the defendant did not hear, or did
not understand, the waiver discussions. This addresses
what, at least in petitioner’s view, Peretz did not. It
should be noted that we do not have before us an instance
where a defendant instructs the lawyer or advises the
court in an explicit, timely way that he or she demands
that a district judge preside in this preliminary phase.
There are instances in federal criminal proceedings
where the procedural requisites for consent are specified
and a right cannot be waived except with a defendant’s
own informed consent. Under Federal Rule of Criminal
Procedure 11(b), for example, the district court is required,
as a precondition to acceptance of a guilty plea, to inform
the defendant in person of the specified rights he or she
may claim in a full criminal trial and then verify that the
Cite as: 553 U. S. ____ (2008) 5
Opinion of the Court
plea is voluntary by addressing the defendant. The re-
quirement is satisfied by a colloquy between judge and
defendant, reviewing all of the rights listed in Rule 11.
Statutes may also address this subject. Under 18
U. S. C. §3401(b), for example, a magistrate judge may
preside over the whole trial and sentencing in a misde-
meanor case but only with the express, personal consent of
the defendant. The provision requires that the magistrate
judge
“carefully explain to the defendant that he has a right
to trial, judgment, and sentencing by a district judge
and that he may have a right to trial by jury before
a district judge or magistrate judge. The magistrate
judge may not proceed to try the case unless the de-
fendant, after such explanation, expressly consents to
be tried before the magistrate judge and expressly and
specifically waives trial, judgment, and sentencing by
a district judge. Any such consent and waiver shall be
made in writing or orally on the record.”
The controlling statute in this case has a different de-
sign, however. Title 28 U. S. C. §636(b)(3) does not state
that consent to preside over felony voir dire must be
granted by following a procedure of similar clarity. As a
general matter, where there is a full trial there are vari-
ous points in the pretrial and trial process when rights
either can be asserted or waived; and there is support in
our cases for concluding that some of these rights cannot
be waived absent the defendant’s own consent. Whether
the personal consent must be explicit and on the record or
can be determined from a course of conduct may be an-
other matter, but for now it suffices to note that we have
acknowledged that some rights cannot be waived by the
attorney alone. See New York v. Hill, 528 U. S. 110, 114–
115 (2000).
Citing some of our precedents on point, the Court in Hill
6 GONZALEZ v. UNITED STATES
Opinion of the Court
gave this capsule discussion:
“What suffices for waiver depends on the nature of
the right at issue. ‘[W]hether the defendant must
participate personally in the waiver; whether certain
procedures are required for waiver; and whether the
defendant’s choice must be particularly informed or
voluntary, all depend on the right at stake.’ United
States v. Olano, 507 U. S. 725, 733 (1993). For certain
fundamental rights, the defendant must personally
make an informed waiver. See, e.g., Johnson v.
Zerbst, 304 U. S. 458, 464–465 (1938) (right to coun-
sel); Brookhart v. Janis, 384 U. S. 1, 7–8 (1966) (right
to plead not guilty). For other rights, however, waiver
may be effected by action of counsel. ‘Although there
are basic rights that the attorney cannot waive with-
out the fully informed and publicly acknowledged con-
sent of the client, the lawyer has—and must have—
full authority to manage the conduct of the trial.’
Taylor v. Illinois, 484 U. S. 400, 417–418 (1988). As
to many decisions pertaining to the conduct of the
trial, the defendant is ‘deemed bound by the acts of
his lawyer-agent and is considered to have “notice of
all facts, notice of which can be charged upon the at-
torney.” ’ Link v. Wabash R. Co., 370 U. S. 626, 634
(1962) (quoting Smith v. Ayer, 101 U. S. 320, 326
(1880)). Thus, decisions by counsel are generally
given effect as to what arguments to pursue, see Jones
v. Barnes, 463 U. S. 745, 751 (1983), what evidentiary
objections to raise, see Henry v. Mississippi, 379 U. S.
443, 451 (1965), and what agreements to conclude re-
garding the admission of evidence, see United States
v. McGill, 11 F. 3d 223, 226–227 (CA1 1993). Absent
a demonstration of ineffectiveness, counsel’s word on
such matters is the last.” Ibid.
The issue in Hill was whether the attorney, acting without
Cite as: 553 U. S. ____ (2008) 7
Opinion of the Court
indication of particular consent from his client, could
waive his client’s statutory right to a speedy trial pursu-
ant to the Interstate Agreement on Detainers. The Court
held that the attorney’s statement, without any showing of
the client’s explicit consent, could waive the speedy trial
right: “Scheduling matters are plainly among those for
which agreement by counsel generally controls.” Id., at
115.
Giving the attorney control of trial management matters
is a practical necessity. “The adversary process could not
function effectively if every tactical decision required
client approval.” Taylor v. Illinois, 484 U. S. 400, 418
(1988). The presentation of a criminal defense can be a
mystifying process even for well-informed laypersons.
This is one of the reasons for the right to counsel. See
Powell v. Alabama, 287 U. S. 45, 68–69 (1932); ABA Stan-
dards for Criminal Justice, Defense Function 4–5.2, Com-
mentary, p. 202 (3d ed. 1993) (“Many of the rights of an
accused, including constitutional rights, are such that only
trained experts can comprehend their full significance,
and an explanation to any but the most sophisticated
client would be futile”). Numerous choices affecting con-
duct of the trial, including the objections to make, the
witnesses to call, and the arguments to advance, depend
not only upon what is permissible under the rules of evi-
dence and procedure but also upon tactical considerations
of the moment and the larger strategic plan for the trial.
These matters can be difficult to explain to a layperson;
and to require in all instances that they be approved by
the client could risk compromising the efficiencies and
fairness that the trial process is designed to promote. In
exercising professional judgment, moreover, the attorney
draws upon the expertise and experience that members of
the bar should bring to the trial process. In most in-
stances the attorney will have a better understanding of
the procedural choices than the client; or at least the law
8 GONZALEZ v. UNITED STATES
Opinion of the Court
should so assume. See Jones v. Barnes, 463 U. S. 745, 751
(1983); see also Tollett v. Henderson, 411 U. S. 258, 267–
268 (1973); cf. ABA Standards, supra, at 202 (“Every
experienced advocate can recall the disconcerting experi-
ence of trying to conduct the examination of a witness or
follow opposing arguments or the judge’s charge while the
client ‘plucks at the attorney’s sleeve’ offering gratuitous
suggestions”). To hold that every instance of waiver re-
quires the personal consent of the client himself or herself
would be impractical.
Similar to the scheduling matter in Hill, acceptance of a
magistrate judge at the jury selection phase is a tactical
decision that is well suited for the attorney’s own decision.
Under Rule 24 of the Federal Rules of Criminal Procedure,
the presiding judge has significant discretion over the
structure of voir dire. The judge may ask questions of the
jury pool or, as in this case, allow the attorneys for the
parties to do so. Fed. Rule Crim. Proc. 24(a); App. 20. A
magistrate judge’s or a district judge’s particular approach
to voir dire both in substance—the questions asked—and
in tone—formal or informal—may be relevant in light of
the attorney’s own approach. The attorney may decide
whether to accept the magistrate judge based in part on
these factors. As with other tactical decisions, requiring
personal, on-the-record approval from the client could
necessitate a lengthy explanation the client might not
understand at the moment and that might distract from
more pressing matters as the attorney seeks to prepare
the best defense. For these reasons we conclude that
express consent by counsel suffices to permit a magistrate
judge to preside over jury selection in a felony trial, pur-
suant to the authorization in §636(b)(3).
Our holding is not inconsistent with reading other
precedents to hold that some basic trial choices are so
important that an attorney must seek the client’s consent
in order to waive the right. See, e.g., Florida v. Nixon, 543
Cite as: 553 U. S. ____ (2008) 9
Opinion of the Court
U. S. 175, 187 (2004) (identifying the choices “ ‘to plead
guilty, waive a jury, testify in his or her own behalf, or
take an appeal’ ” as examples (quoting Jones, supra, at
751)). Petitioner argues that the decision to have a magis-
trate judge rather than an Article III judge preside at jury
selection is a fundamental choice, cf. Hill, 528 U. S., at
114, or, at least, raises a question of constitutional signifi-
cance so that we should interpret the Act to require an
explicit personal statement of consent before the magis-
trate judge can proceed with jury selection.
We conclude otherwise. Under the avoidance canon,
“when ‘a statute is susceptible of two constructions, by one
of which grave and doubtful constitutional questions arise
and by the other of which such questions are avoided, our
duty is to adopt the latter.’ ” Harris v. United States, 536
U. S. 545, 555 (2002) (quoting United States ex rel. Attor-
ney General v. Delaware & Hudson Co., 213 U. S. 366, 408
(1909)). The canon, however, does not apply unless there
are “serious concerns about the statute’s constitutional-
ity.” Harris, supra, at 555; see also Reno v. Flores, 507
U. S. 292, 314, n. 9 (1993).
Those concerns are not present here. Petitioner con-
cedes that a magistrate judge is capable of competent and
impartial performance of the judicial tasks involved in
jury examination and selection. Reply Brief for Petitioner
12–13; see also Peretz, 501 U. S., at 935 (“The Act evinces
a congressional belief that magistrates are well qualified
to handle matters of similar importance to jury selection”).
The Act contains some features to ensure impartiality.
See, e.g., 28 U. S. C. §§631(i) (establishing requirements
for removal), 632 (limiting concurrent employment), 634(b)
(providing salary protection during the term). And “ ‘the
district judge—insulated by life tenure and irreducible
salary—is waiting in the wings, fully able to correct er-
rors.’ ” Peretz, supra, at 938 (quoting United States v.
Raddatz, 447 U. S. 667, 686 (1980) (Blackmun, J., concur-
10 GONZALEZ v. UNITED STATES
Opinion of the Court
ring)). Here petitioner made no objections to the rulings
by the Magistrate Judge. Had objections been made,
nothing in the record or the rules indicates that the Dis-
trict Judge could not have ruled on the issues, all with no
delay or prejudice to any trial that had commenced. See
Peretz, supra, at 935, n. 12, 939. These factors support our
determination that consent of counsel suffices to allow a
magistrate judge to supervise voir dire. This is not a case
where the magistrate judge is asked to preside or make
determinations after the trial has commenced and it is
arguably difficult or disruptive for a district judge to re-
view any objections that might have been made to the
magistrate judge’s rulings.
Petitioner notes that Peretz considered supervision over
entire civil and misdemeanor trials comparable to presid-
ing over voir dire at a felony trial. 501 U. S., at 933. It
follows, he argues, that §636(b)(3) must require, as does
18 U. S. C. §3401(b), express personal consent by the de-
fendant before a magistrate judge may preside over voir
dire. But it is not obvious that Congress would have
thought these matters required the same form of consent.
Aside from the fact that the statutory text is different,
there are relevant differences between presiding over a
full trial and presiding over voir dire. Were petitioner
correct, one would think the Act would require at least
the same form of consent to authorize a magistrate judge
to preside over either a civil or a misdemeanor trial
(which Peretz also deemed to be of comparable impor-
tance). Our interpretation of the Act indicates otherwise.
Compare §3401(b), with Roell v. Withrow, 538 U. S. 580,
590 (2003) (concluding that parties may authorize a
full-time magistrate judge to preside over a civil trial via
implied consent).
Petitioner argues that our view of the issue should be
informed by Gomez’s conclusion that having a magistrate
judge during jury selection without consent is structural
Cite as: 553 U. S. ____ (2008) 11
Opinion of the Court
error, not subject to harmless-error review. See 490 U. S.,
at 876. The exemption of certain errors from harmless-
error review “recognizes that some errors necessarily
render a trial fundamentally unfair.” Rose v. Clark, 478
U. S. 570, 577 (1986); see also id., at 577–578. In peti-
tioner’s view, Gomez establishes that the issue in this case
is of sufficient gravity or concern that personal consent
must be required.
The Court held in Gomez that imposition of a magistrate
judge over objection was structural error, violating the
basic right to a trial conducted at all critical stages by a
judicial officer with appropriate jurisdiction. 490 U. S., at
876. It does not follow, however, that this structural
aspect requires an insistence on personal consent. Here,
jurisdiction turns on consent; and for the reasons dis-
cussed above an attorney, acting on the client’s behalf, can
make an informed decision to allow the magistrate judge
to exercise the jurisdiction Congress permits.
Although a criminal defendant may demand that an
Article III judge preside over the selection of a jury, the
choice to do so reflects considerations more significant to
the realm of the attorney than to the accused. Requiring
the defendant to consent to a magistrate judge only by
way of an on-the-record personal statement is not dictated
by precedent and would burden the trial process, with
little added protection for the defendant.
Pursuant to 28 U. S. C. §636(b)(3) a magistrate judge
may preside over jury examination and jury selection only
if the parties, or the attorneys for the parties, consent.
Consent from an attorney will suffice. We do not have
before us, and we do not address, an instance where the
attorney states consent but the party by express and
timely objection seeks to override his or her counsel. We
need not decide, moreover, if consent may be inferred from
a failure by a party and his or her attorney to object to the
presiding by a magistrate judge. These issues are not
12 GONZALEZ v. UNITED STATES
Opinion of the Court
presented here.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 553 U. S. ____ (2008) 1
SCALIA, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–11612
_________________
HOMERO GONZALEZ, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 12, 2008]
JUSTICE SCALIA, concurring in the judgment.
I agree with the Court that no statute or rule requires
that petitioner personally participate in the waiver of his
right to have an Article III judge oversee voir dire. As to
whether the Constitution requires that, the Court holds
that it does not because it is a decision more tactical than
fundamental—“more significant to the realm of the attor-
ney than to the accused.” Ante, at 11. I agree with the
Court’s conclusion, but not with the tactical-vs.-
fundamental test on which it is based.
Petitioner and the Government do not dispute that
petitioner’s counsel consented to have a magistrate judge
oversee voir dire. The issue is whether that consent—
consent of counsel alone—effected a valid waiver of peti-
tioner’s right to an Article III judge. It is important to
bear in mind that we are not speaking here of action taken
by counsel over his client’s objection—which would have
the effect of revoking the agency with respect to the action
in question. See Brookhart v. Janis, 384 U. S. 1, 7–8
(1966). There is no suggestion of that. The issue is
whether consent expressed by counsel alone is ineffective
simply because the defendant himself did not express to
the court his consent.
I think not. Our opinions have sometimes said in pass-
ing that, under the Constitution, certain “fundamental” or
2 GONZALEZ v. UNITED STATES
SCALIA, J., concurring in judgment
“basic” rights cannot be waived unless a defendant per-
sonally participates in the waiver. See, e.g., Taylor v.
Illinois, 484 U. S. 400, 417–418 (1988); United States v.
Olano, 507 U. S. 725, 733 (1993). We have even repeated
the suggestion in cases that actually involved the question
whether a criminal defendant’s attorney could waive a
certain right—but never in a case where the suggestion
governed the disposition. In New York v. Hill, 528 U. S.
110 (2000), although we noted that “[f]or certain funda-
mental rights, the defendant must personally make an
informed waiver,” id., at 114, we in fact found such a
requirement inapplicable; and even that determination
can be viewed as resting upon an interpretation of the
statute creating the right that counsel had waived, see id.,
at 115. And in Florida v. Nixon, 543 U. S. 175 (2004),
although we said that “counsel lacks authority to consent
to a guilty plea on [his] client’s behalf,” id., at 187, our
holding was simply that counsel’s concession of guilt to the
jury did not amount to a guilty plea, id., at 188, and did
not constitute ineffective assistance of counsel, id., at 192.
As detailed in the margin, the decisions often cited for the
principle of attorney incapacity are inapposite;1 except for
——————
1 On the right to jury, Thompson v. Utah, 170 U. S. 343 (1898), held,
at most, that the right was not waivable. Id., at 353–354. The Court
later questioned whether Thompson even held that, and went on to
hold that the right is waivable. See Patton v. United States, 281 U. S.
276, 293 (1930). The observation at the end of Patton that “before any
waiver can become effective, the consent of government counsel and the
sanction of the court must be had, in addition to the express and
intelligent consent of the defendant,” id., at 312, was dictum; the Patton
defendants had all agreed to the waiver, id., at 286. Even less germane
is Adams v. United States ex rel. McCann, 317 U. S. 269 (1942), which
held only that an unrepresented defendant can waive his right to jury
without the advice of counsel. Id., at 278–279.
On the right to trial, Brookhart v. Janis, 384 U. S. 1 (1966), held only
that a defendant’s expressed wish to proceed to trial must prevail over
his attorney’s contrary opinion. See id., at 7–8. Other decisions have
said that waiver of the right to trial must be knowing and voluntary,
Cite as: 553 U. S. ____ (2008) 3
SCALIA, J., concurring in judgment
one line of precedent, no decision of this Court holds that,
as a constitutional matter, a defendant must personally
waive certain of his “fundamental” rights—which typically
are identified as the rights to trial, jury, and counsel. The
exceptional line of precedent involves the right to counsel.
See Johnson v. Zerbst, 304 U. S. 458, 464–465 (1938). But
that right is essentially sui generis, since an unrepre-
sented defendant cannot possibly waive his right to coun-
sel except in person. Cases involving that right therefore
provide no support for the principle that the Constitution
sometimes forbids attorney waiver.
Since a formula repeated in dictum but never the basis
for judgment is not owed stare decisis weight, see Lingle v.
Chevron U. S. A. Inc., 544 U. S. 528, 545–546 (2005), our
precedents have not established the rule of decision appli-
cable in this case. I would not adopt the tactical-vs.-
fundamental approach, which is vague and derives from
nothing more substantial than this Court’s say-so. One
respected authority has noted that the approach has a
“potential for uncertainty,” and that our precedents pur-
porting to apply it “have been brief and conclusionary.” 3
W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Proce-
dure §§11.6(a), (c), pp. 784, 796 (3d ed. 2007). That is
surely an understatement. What makes a right tactical?
Depending on the circumstances, waiving any right can be
a tactical decision. Even pleading guilty, which waives the
right to trial, is highly tactical, since it usually requires
balancing the prosecutor’s plea bargain against the pros-
——————
see, e.g., Brady v. United States, 397 U. S. 742, 748 (1970), but waiver
by counsel was not at issue in those cases. Even if, in the case of
waiver by counsel, the knowing and voluntary requirement applies to
the defendant himself, that still permits counsel to waive on behalf of
an informed and agreeing client. Equally inapposite is Boykin v.
Alabama, 395 U. S. 238 (1969), which held that a knowing and volun-
tary waiver of the right to trial cannot be inferred from a silent record.
Id., at 244.
4 GONZALEZ v. UNITED STATES
SCALIA, J., concurring in judgment
pect of better and worse outcomes at trial.
Whether a right is “fundamental” is equally mysterious.
One would think that any right guaranteed by the Consti-
tution would be fundamental. But I doubt many think
that the Sixth Amendment right to confront witnesses
cannot be waived by counsel. See Diaz v. United States,
223 U. S. 442, 444, 452–453 (1912). Perhaps, then, speci-
fication in the Constitution is a necessary, but not suffi-
cient, condition for “fundamental” status. But if some-
thing more is necessary, I cannot imagine what it might
be. Apart from constitutional guarantee, I know of no
objective criterion for ranking rights. The Court concludes
that the right to have an Article III judge oversee voir dire
is not a fundamental right, ante, at 8–10, without answer-
ing whether it is even a constitutional right,2 and without
explaining what makes a right fundamental in the first
place. The essence of “fundamental” rights continues to
elude.
I would therefore adopt the rule that, as a constitutional
matter, all waivable rights (except, of course, the right to
counsel) can be waived by counsel. There is no basis in
the Constitution, or as far as I am aware in common-law
practice, for distinguishing in this regard between a
criminal defendant and his authorized representative. In
fact, the very notion of representative litigation suggests
that the Constitution draws no distinction between them.
——————
2 Wehave avoided addressing whether the right has a basis in the
Constitution. In Gomez v. United States, 490 U. S. 858 (1989), we
interpreted the Federal Magistrate Act, 28 U. S. C. §636(b)(3), not to
permit a magistrate judge to oversee voir dire, 490 U. S., at 875–876,
making it unnecessary to consider whether there was a constitutional
right to have an Article III judge oversee voir dire. In Peretz v. United
States, 501 U. S. 923 (1991), we held that judicial overseeing of the voir
dire had been waived, id., at 936–937, which obviated having to decide
whether it was a constitutional right. See United States v. Olano, 507
U. S. 725, 732–733 (1993) (waiver extinguishes the error of not comply-
ing with a legal rule).
Cite as: 553 U. S. ____ (2008) 5
SCALIA, J., concurring in judgment
“A prisoner . . . who defends by counsel, and silently ac-
quiesces in what they agree to, is bound as any other
principal by the act of his agent.” People v. Rathbun, 21
Wend. 509, 543 (N. Y. Sup. Ct. 1839). The Rathbun opin-
ion, far from being the outlier view of a state court, was
adopted as the common law position by eminent jurists of
the 19th century, including Chief Justice Shaw of the
Supreme Judicial Court of Massachusetts. See Common-
wealth v. Dailey, 66 Mass. 80, 83 (1853) (discussing
Rathbun with approval in a case involving waiver of the
right to a 12-man jury).
It may well be desirable to require a defendant’s per-
sonal waiver with regard to certain rights. Rule 11(c) of
the Federal Rules of Criminal Procedure, for example,
provides that before accepting a guilty plea the court must
“address the defendant personally in open court,” advise
him of the consequences of his plea, and assure that the
plea is voluntary. See also Rule 10(b) (waiver of right to
appear at arraignment must be in writing signed by coun-
sel and defendant). I do not contend that the Sixth
Amendment’s right to assistance of counsel prohibits such
requirements of personal participation, at least where
they do not impair counsel’s expert assistance.
Even without such rules it is certainly prudent, to fore-
stall later challenges to counsel’s conduct, for a trial court
to satisfy itself of the defendant’s personal consent to
certain actions, such as entry of a guilty plea or waiver of
jury trial, for which objective norms require an attorney to
seek his client’s authorization. See, e.g., ABA Model Rule
of Professional Conduct 1.2(a) (2007) (“In a criminal case,
the lawyer shall abide by the client’s decision, after con-
sultation with the lawyer, as to a plea to be entered,
whether to waive jury trial and whether the client will
testify”). But I know of no basis for saying that the Consti-
tution automatically invalidates any trial action not taken
by the defendant personally, though taken by his author-
6 GONZALEZ v. UNITED STATES
SCALIA, J., concurring in judgment
ized counsel. I know of no way of determining, except by
sheer prescription, which trial rights are ex ante and by
law subject to such a limitation upon waiver. Assuredly
the tactical-fundamental dichotomy does not do the trick.
I would leave this matter of placing reasonable limits upon
the right of agency in criminal trials to be governed by
positive law, in statutes and rules of procedure.
I would hold that petitioner’s counsel’s waiver was
effective because no rule or statute provides that the
waiver come from the defendant personally.
Cite as: 553 U. S. ____ (2008) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–11612
_________________
HOMERO GONZALEZ, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 12, 2008]
JUSTICE THOMAS, dissenting.
The Court holds today that neither the Federal Magis-
trates Act, 28 U. S. C. §631 et seq., nor the Constitution
requires that a criminal defendant on trial for a felony
personally give his informed consent before a magistrate
judge may preside over jury selection. The Court proceeds
from the premise, established in Peretz v. United States,
501 U. S. 923 (1991), that the Federal Magistrates Act
authorizes magistrate judges to preside over felony jury
selection if the parties consent. I reject that premise, and
for the reasons set forth below, would overrule Peretz and
hold that the delegation of voir dire in this case was statu-
tory error. I further conclude that the error may be cor-
rected despite petitioner’s failure to raise a timely objec-
tion in the District Court. Accordingly, I would reverse
the judgment below.
I
A
This is the third time the Court has addressed the cir-
cumstances under which a district judge may delegate
felony voir dire proceedings to a magistrate judge under
the “additional duties” clause of the Federal Magistrates
Act, 28 U. S. C. §636(b)(3). In Gomez v. United States, 490
U. S. 858 (1989), the Court unanimously held that
2 GONZALEZ v. UNITED STATES
THOMAS, J., dissenting
§636(b)(3) does not authorize delegation of felony voir dire
proceedings to a magistrate judge. Although the defen-
dants in Gomez had objected to the delegation, neither the
Court’s reasoning nor its conclusion turned on that fact.
Rather, the Court’s interpretation of §636(b)(3) rested
primarily on two inferences drawn from the statutory
scheme. First, the Court reasoned that Congress’ “care-
fully defined grant of authority to conduct trials of civil
matters and of minor criminal cases should be construed
as an implicit withholding of the authority to preside at a
felony trial.” Id., at 872. Second, the Court found it “in-
congruous” to assume that Congress intended felony jury
selection to be among magistrate judges’ additional duties
but failed to provide an explicit standard of review as it
had done for other duties described in the statute. Id., at
874. Neither of these inferences depended on the presence
or absence of the parties’ consent, and the Court’s conclu-
sion was accordingly unqualified: “Congress . . . did not
contemplate inclusion of jury selection in felony trials
among a magistrate’s additional duties.” Id., at 872; see
also ibid., n. 25 (“[W]e decide that the Federal Magistrates
Act does not allow the delegation of jury selection to mag-
istrates”); id., at 875–876 (“The absence of a specific refer-
ence to jury selection in the statute, or indeed, in the
legislative history, persuades us that Congress did not
intend the additional duties clause to embrace this func-
tion” (footnote omitted)).
Two years later, the Court decided Peretz. Peretz’s trial
took place before this Court’s decision in Gomez, and his
attorney had agreed to the delegation of voir dire, assuring
the Magistrate Judge that his client had consented. Dur-
ing the pendency of Peretz’s appeal the Court decided
Gomez, and Peretz argued that Gomez required reversal of
his conviction. The Court of Appeals disagreed, conclud-
ing that he had waived any challenge to the Magistrate
Judge’s supervision of voir dire. Before this Court, the
Cite as: 553 U. S. ____ (2008) 3
THOMAS, J., dissenting
Government defended the Court of Appeals’ holding as to
waiver but confessed error with respect to the delegation
of voir dire, “agree[ing] with petitioner . . . that Gomez
foreclose[d] the argument that the statute may be read to
authorize magistrate-conducted voir dire when the defen-
dant consents.” Brief for United States in Peretz v. United
States, O. T. 1990, No. 90–615, p. 9.
Despite the Government’s confession of error, the Court,
“[i]n an amazing display of interpretive gymnastics,”
Peretz, supra, at 940–941 (Marshall, J., dissenting), held
in a 5-to-4 decision that §636(b)(3) does, after all, permit
magistrate judges to conduct felony voir dire proceedings,
so long as the parties consent. There is no need here to
reproduce Peretz’s flawed reasoning or to rehash the de-
bate between the majority and dissenting opinions. Suf-
fice it to say that, in my view, Gomez correctly interpreted
§636(b)(3) not to authorize delegation of felony jury selec-
tion regardless of the parties’ consent, and I agree with
the dissenters in Peretz that the Court’s contrary conclu-
sion in that case was based on a patently “revisionist
construction of the Act.” 501 U. S., at 947 (opinion of
Marshall, J.).
The only question, then, is whether to give stare decisis
effect to Peretz’s erroneous conclusion that §636(b)(3)
authorizes magistrate judges to conduct felony jury selec-
tion if the parties consent. Although “[i]t is true that we
give stronger stare decisis effect to our holdings in statu-
tory cases than in constitutional cases,” that rule “is not
absolute, and we should not hesitate to allow our prece-
dent to yield to the true meaning of an Act of Congress
when our statutory precedent is ‘unworkable’ or ‘badly
reasoned.’ ” Clark v. Martinez, 543 U. S. 371, 401–402
(2005) (THOMAS, J., dissenting). Peretz is both. Two con-
siderations in particular convince me that Peretz should be
overruled.
4 GONZALEZ v. UNITED STATES
THOMAS, J., dissenting
B
First, Peretz leaves the Court with no principled way to
decide the statutory question presented in this case.
Contrary to the Court’s suggestion, the question presented
here is not whether “every instance of waiver requires the
personal consent of the client,” ante, at 8; rather, it is the
far narrower question whether §636(b)(3) requires the
defendant’s personal consent before felony jury selection
may be delegated to a magistrate judge. The Court an-
swers this question in the negative, but does not point to
anything in §636(b)(3) or in the broader statutory scheme
that supports its conclusion. It does not because it cannot.
Not having provided for delegation of felony voir dire
proceedings under the additional duties clause, Congress
of course did not specify whether the parties’ consent is
required. And “[b]ecause the additional duties clause
contains no language predicating delegation of an addi-
tional duty upon litigant consent, it likewise contains
nothing indicating what constitutes ‘consent’ to the dele-
gation of an additional duty.” Peretz, supra, at 947, n. 6
(Marshall, J., dissenting).
Congress’ silence is particularly telling in the context of
the Federal Magistrates Act. Elsewhere in the Act, Con-
gress took great care to specify whether and in what man-
ner the litigants must consent before a magistrate judge
may assume significant duties. In §636(c)(1), for example,
Congress provided that full-time magistrate judges may
conduct civil trials “[u]pon the consent of the parties,” and
that part-time magistrate judges may do so “[u]pon the
consent of the parties, pursuant to their specific written
request.” Congress further provided in §636(c)(2) that
“[t]he decision of the parties shall be communicated to the
clerk of court,” and, if the parties do not consent, the
district judge may not raise the matter again without
“advis[ing] the parties that they are free to withhold con-
sent without adverse substantive consequences.” I have
Cite as: 553 U. S. ____ (2008) 5
THOMAS, J., dissenting
previously explained at length why §636(c) is best read to
require the express consent of the parties, see Roell v.
Withrow, 538 U. S. 580, 591–597 (2003) (dissenting opin-
ion), and I will not repeat that discussion here, other than
to point out that Congress obviously focused on the issue
and gave detailed instructions regarding the form of the
parties’ consent.
Even more telling is that Congress required the defen-
dant’s express, informed consent before a magistrate judge
may conduct a misdemeanor trial. Section 636(a)(3) au-
thorizes magistrate judges to conduct certain misde-
meanor trials “in conformity with and subject to the limi-
tations of” 18 U. S. C. §3401, which spells out in detail the
manner in which the defendant must consent:
“The magistrate judge shall carefully explain to the
defendant that he has a right to trial, judgment, and
sentencing by a district judge and that he may have a
right to trial by jury before a district judge or magis-
trate judge. The magistrate judge may not proceed to
try the case unless the defendant, after such explana-
tion, expressly consents to be tried before the magis-
trate judge and expressly and specifically waives trial,
judgment, and sentencing by a district judge. Any
such consent and waiver shall be made in writing or
orally on the record.” §3401(b).
The Court recites the language of §3401(b), but gives it
no weight in its analysis. It recognizes that “[t]here are
instances in federal criminal proceedings where the proce-
dural requisites for consent are specified and a right can-
not be waived except with a defendant’s own informed
consent.” Ante, at 4. But it is given no pause by the fact
that the Federal Magistrates Act, the very statute it in-
terprets to permit delegation of felony proceedings without
the defendant’s “own informed consent,” expressly re-
quires such consent before a magistrate judge may con-
6 GONZALEZ v. UNITED STATES
THOMAS, J., dissenting
duct a misdemeanor trial. Instead, the Court worries that
“requiring personal, on-the-record approval from the client
could necessitate a lengthy explanation the client might
not understand at the moment and that might distract
from more pressing matters,” ante, at 8, heedless of the
fact that Congress plainly viewed any such “burden[s] [on]
the trial process,” ante, at 11, as outweighed by the need to
obtain the defendant’s personal consent before a magis-
trate judge may preside, even over a misdemeanor trial.
The Court glides over this glaring anomaly, asserting
that “[t]he controlling statute in this case has a different
design,” and “does not state that consent to preside over
felony voir dire must be granted by following a procedure
of similar clarity.” Ante, at 5. But there is only one stat-
ute at issue here—the Federal Magistrates Act expressly
incorporates 18 U. S. C. §3401(b)—and the fact that it
does not mandate “a procedure of similar clarity” for dele-
gation of felony jury selection is hardly surprising, since
§636(b)(3)—which provides in its entirety that “[a] magis-
trate judge may be assigned such additional duties as are
not inconsistent with the Constitution and laws of the
United States”—says not a word about delegation of felony
jury selection, much less about whether and in what form
the parties must consent.
The Court further suggests that §3401(b) is inconse-
quential because “there are relevant differences between
presiding over a full trial and presiding over voir dire.”
Ante, at 10. But even Peretz recognized that “supervision
of entire civil and misdemeanor trials” is “comparable in
responsibility and importance to presiding over voir dire
at a felony trial.” 501 U. S., at 933. And of course, it was
Congress’ omission of any mode of consent for delegation
of felony proceedings, in contradistinction to its detailed
treatment of the consent required for delegation of civil
and misdemeanor trials, that drove Gomez’s analysis. 490
U. S., at 872 (“[T]he carefully defined grant of authority to
Cite as: 553 U. S. ____ (2008) 7
THOMAS, J., dissenting
conduct trials of civil matters and of minor criminal cases
should be construed as an implicit withholding of the
authority to preside at a felony trial”); see also Peretz,
supra, at 955 (SCALIA, J., dissenting) (“By specifically
authorizing magistrates to perform duties in civil and
misdemeanor trials, and specifying the manner in which
parties were to express their consent in those situations,
the statute suggested absence of authority to preside over
felony trials through some (unspecified) mode of consent”).
Today’s decision is truly an ironic reversal. The Court
once thought that Congress’ differential treatment of
felony jury selection and misdemeanor trials was a reason
to believe that Congress had entirely withheld authority to
preside over felony jury selection. Today, however, the
Court says that the “relevant differences” between these
responsibilities support the conclusion that Congress
permitted delegation of felony jury selection upon a lesser
showing of consent than that required for delegation of a
misdemeanor trial.
In the end, I am sympathetic to petitioner’s argument
that §636(b)(3) should be read in pari materia with
§3401(b). See Brief for Petitioner 38 (“If, in enacting the
[Federal Magistrates Act] Congress believed a defendant’s
explicit, personal consent was constitutionally necessary
to bestow authority upon a magistrate judge in federal
misdemeanor cases, then a fortiori Congress would have
believed that such explicit, personal consent is necessary
to permit a magistrate judge to conduct felony jury selec-
tion”). And I share his view that Congress undoubtedly
would have adopted something akin to §3401(b)’s re-
quirements had it authorized delegation of felony jury
selection. See Peretz, supra, at 947, n. 6 (Marshall, J.,
dissenting) (“I would think, however, that the standard
governing a party’s consent to delegation of a portion of a
felony trial under the additional duties clause should be at
least as strict as that governing delegation of a misde-
8 GONZALEZ v. UNITED STATES
THOMAS, J., dissenting
meanor trial to a magistrate”).
Nonetheless, I do not believe that Peretz’s erroneous
interpretation of §636(b)(3) gives me license to rewrite the
Federal Magistrates Act to reflect what I think Congress
would have done had it contemplated delegation of felony
jury selection or foreseen the Court’s decision in Peretz.
Cf. Brief for Petitioner 33 (“What the Court is left to do in
petitioner’s case is to fill the gap by determining what
Congress would have done in enacting the [Federal Magis-
trates Act] had it expressly addressed the ‘crucial’ consent
issue” (footnote omitted)). Where, as here, a mistaken
interpretation of a statute leaves the Court with no prin-
cipled way to answer subsequent questions that arise
under the statute, it seems to me that the better course is
simply to acknowledge and correct the error. Cf.
Kimbrough v. United States, 552 U. S. ___, ___ (2007) (slip
op., at 3) (THOMAS, J., dissenting).
C
A second reason why I would not give stare decisis effect
to Peretz is that it requires us to wade into a constitutional
morass. In Gomez, the Court declined to decide whether
the Constitution permits delegation of felony jury selection
to a magistrate judge. 490 U. S., at 872, n. 25. Peretz
simply brushed aside that difficult constitutional question.
See 501 U. S., at 936 (“There is no constitutional infirmity
in the delegation of felony trial jury selection to a magis-
trate when the litigants consent”); cf. id., at 948–952
(Marshall, J., dissenting) (discussing the “serious constitu-
tional question” “whether jury selection by a magistrate—
even when a defendant consents—is consistent with Arti-
cle III”); id., at 956 (SCALIA, J., dissenting) (not resolving
“the serious and difficult constitutional questions raised
by the [majority’s] construction,” but suggesting that the
Court’s reasoning rendered “the doctrine of unconstitu-
tional delegation” “a dead letter”).
Cite as: 553 U. S. ____ (2008) 9
THOMAS, J., dissenting
Today the Court’s result requires it to go even further.
In addition to reaffirming Peretz’s questionable holding
that the Constitution permits delegation of felony voir dire
proceedings to a non-Article III judge, the Court decides
that a criminal defendant’s waiver of his right to an Arti-
cle III judge need not be personal and informed. The
Court treats this as an easy question, concluding that the
choice between an Article III judge and a magistrate judge
is not among those “basic trial choices,” ante, at 8, that
require a defendant’s personal consent because “a magis-
trate judge is capable of competent and impartial per-
formance of the judicial tasks involved in jury examination
and selection,” and because magistrate judges are super-
vised by Article III judges, ante, at 9, 10. Under our prece-
dents, however, the question is not so easily dispatched.
Our cases shed little light on whether and when a
criminal defendant must personally waive a constitutional
right. Although we have previously stated that, “[f]or
certain fundamental rights, the defendant must personally
make an informed waiver,” New York v. Hill, 528 U. S.
110, 114 (2000), many of the cases we have cited for that
proposition do not in fact stand for it. For example, we
have cited Brookhart v. Janis, 384 U. S. 1 (1966), for the
proposition that the defendant’s personal consent is re-
quired for a waiver of his right to plead not guilty. See,
e.g., Hill, supra, at 114. But Brookhart’s holding was
narrower. The only question presented there was
“whether counsel has power to enter a plea which is incon-
sistent with his client’s expressed desire and thereby waive
his client’s constitutional right to plead not guilty and
have a trial in which he can confront and cross-examine
the witnesses against him.” 384 U. S., at 7 (emphasis
added). Brookhart thus did not decide whether the Con-
stitution prohibits counsel from entering a guilty plea on
his client’s behalf in cases where the defendant has not
expressed a contrary desire.
10 GONZALEZ v. UNITED STATES
THOMAS, J., dissenting
Similarly, Patton v. United States, 281 U. S. 276 (1930),
a case often cited for the proposition that the right to a
jury trial can be waived only by the defendant personally,
does not draw a clear distinction between the defendant’s
own consent and that of his attorney. The Court stated in
dicta that “the express and intelligent consent of the de-
fendant” is required “before any waiver [of the right to a
jury trial] can become effective.” Id., at 312. But that
requirement appears to have been satisfied in Patton by
counsel’s representation to the trial court that he had
conferred with his clients and obtained their consent. Id.,
at 286–287.
Our cases thus provide little relevant guidance.
JUSTICE SCALIA may well be correct that, as a matter of
first principles, there is no right (other than perhaps the
sui generis right to counsel) that cannot be waived by a
defendant’s attorney, acting as the duly authorized agent
of his client. See ante, at 4 (opinion concurring in judg-
ment). But if I were to accept the Court’s oft-repeated
dictum that there are certain fundamental rights that can
be waived only by the defendant personally, see, e.g.,
Florida v. Nixon, 543 U. S. 175, 187 (2004) (“[C]ertain
decisions regarding the exercise or waiver of basic trial
rights are of such moment that they cannot be made for
the defendant by a surrogate”); Hill, supra, at 114; Taylor
v. Illinois, 484 U. S. 400, 417–418 (1988) (“[T]here are
basic rights that the attorney cannot waive without the
fully informed and publicly acknowledged consent of the
client”), I see no reason why the right to an Article III
judge should not be among them.
There is no apparent reason, for example, why the right
to an Article III judge should be deemed any less funda-
mental, or its exercise any more “ ‘tactical,’ ” ante, at 7
(opinion of the Court) (quoting Taylor, supra, at 418), than
the right to a jury trial. The Framers viewed independent
judges, no less than the right to a jury of one’s peers, as
Cite as: 553 U. S. ____ (2008) 11
THOMAS, J., dissenting
indispensable to a fair trial. See, e.g., United States v.
Hatter, 532 U. S. 557, 568–569 (2001) (discussing the
Framers’ overriding concern for an independent Judiciary
and quoting Chief Justice Marshall’s statement that the
“ ‘greatest scourge . . . ever inflicted’ ” “ ‘was an ignorant, a
corrupt, or a dependent Judiciary’ ” (quoting Proceedings
and Debates of the Virginia State Convention, of 1829–
1830, p. 619 (1830))). For that reason, the Constitution
affords Article III judges the structural protections of life
tenure and salary protection. Art. III, §1. The Court’s
observation that “a magistrate judge is capable of compe-
tent and impartial performance” of judicial duties, ante, at
9, is thus beside the point.* Magistrate judges do not
——————
* Equally beside the point is the fact that magistrate judges are
appointed by, and subject to the supervision of, district judges. The
Court reassures itself by hypothesizing that the District Court could
have ruled on any objections to the Magistrate Judge’s rulings. Ante, at
10. But the Court once “harbor[ed] serious doubts” that a district judge
who was not present during jury selection could “meaningfully” review
a magistrate judge’s rulings, Gomez v. United States, 490 U. S. 858, 874
(1989), because “no transcript can recapture the atmosphere of the voir
dire,” id., at 875. The Court does not explain what has intervened to
dispel those doubts. And even if district judges could meaningfully
review magistrate judges’ voir dire rulings, that would not change the
fact that magistrate judges are subject to outside influences in ways
that Article III judges are not. As Judge Posner has explained:
“The fact that the appointing power has been given to Article III
judges is the opposite of reassuring. It makes magistrates beholden to
judges as well as to Congress. . . . The Constitution built internal
checks and balances into the legislative branch by making Congress
bicameral and into the judicial branch by guaranteeing all federal
judges—not just Supreme Court Justices, or appellate judges gener-
ally—tenure during good behavior and protection against pay cuts.
Appellate judges can reverse district judges, can mandamus them, can
criticize them, can remand a case to another judge, but cannot fire
district judges, cow them, or silence them—cannot prevent them from
making independent judgments and expressing independent views. . . .
[A]s long as [district judges] enjoy the tenure and compensation protec-
tions of Article III, they are independent of [those] who appointed them
. . . . Magistrates do not have those protections; the judges control their
12 GONZALEZ v. UNITED STATES
THOMAS, J., dissenting
enjoy the structural protections of Article III: They serve
8-year terms and may be removed for cause, 28 U. S. C.
§§631(e), (i), and they are subject to diminution of their
salaries and outright abolition of their offices by Congress.
Accordingly, whatever their virtues, magistrate judges are
no substitute for Article III judges in the eyes of the Con-
stitution.
In short, if I accepted the Court’s dictum that the right
to a jury trial may be waived only by the defendant per-
sonally, see, e.g., Nixon, supra, at 187, I would be hard
pressed to conclude that waiver of the right to an Article
III judge during a critical stage of a felony trial requires
anything less. That said, I include this brief discussion of
the constitutional issues this case presents not because I
would decide them, but to point out that the Court gives
them short shrift. These are serious constitutional ques-
tions, see Roell, 538 U. S., at 595 (THOMAS, J., dissenting),
and they are posed only because of Peretz’s erroneous
interpretation of the Federal Magistrates Act. Indeed, I
suspect that Congress withheld from magistrate judges
the authority to preside during felony trials precisely in
order to avoid the constitutional questions Peretz now
thrusts upon us. Again, rather than plow headlong into
this constitutional thicket, the better choice is simply to
overrule Peretz. Cf. Peretz, 501 U. S., at 952 (Marshall, J.,
dissenting) (finding the Court’s resolution of difficult
Article III questions “particularly unfortunate” where “the
most coherent reading of the Federal Magistrates Act
avoids these problems entirely”).
II
Because I conclude that Peretz should be overruled, and
that the District Court therefore erred in delegating voir
——————
reappointment.” Geras v. Lafayette Display Fixtures, Inc., 742 F. 2d
1037, 1053 (CA7 1984) (dissenting opinion).
Cite as: 553 U. S. ____ (2008) 13
THOMAS, J., dissenting
dire to the Magistrate Judge, I must also address the
Government’s alternative argument that petitioner for-
feited his claim by failing to object to the delegation.
Petitioner’s failure to object, the Government contends,
means that he cannot prevail unless he satisfies the re-
quirements of the plain-error rule. It is true that peti-
tioner did not raise a timely objection to the District
Court’s delegation of voir dire. And petitioner cannot
satisfy the plain-error rule because the statutory error
below—unauthorized delegation of voir dire to a magis-
trate judge—was not “plain” under Peretz.
Not all uncontested errors, however, are subject to the
plain-error rule. In limited circumstances, we have
“agreed to correct, at least on direct review, violations of a
statutory provision that embodies a strong policy concern-
ing the proper administration of judicial business even
though the defect was not raised in a timely manner.”
Nguyen v. United States, 539 U. S. 69, 78 (2003) (internal
quotation marks omitted). In Nguyen, a non-Article III
judge sat by designation on the Ninth Circuit panel that
affirmed petitioners’ convictions. Petitioners failed to
object to the composition of the panel in the Ninth Circuit
and raised the issue for the first time in their petitions for
certiorari. Because the Ninth Circuit panel “contravened
the statutory requirements set by Congress for the compo-
sition of the federal courts of appeals,” id., at 80, and
because those requirements “embodie[d] weighty congres-
sional policy concerning the proper organization of the
federal courts,” id., at 79, we held that petitioners’ failure
to object did not preclude relief. We specifically declined
to apply the plain-error rule:
“It is true, as the Government observes, that a failure
to object to trial error ordinarily limits an appellate
court to review for plain error. See 28 U. S. C. §2111;
Fed. Rule Crim. Proc. 52(b). But to ignore the viola-
14 GONZALEZ v. UNITED STATES
THOMAS, J., dissenting
tion of the designation statute in these cases would
incorrectly suggest that some action (or inaction) on
petitioners’ part could create authority Congress has
quite carefully withheld. Even if the parties had ex-
pressly stipulated to the participation of a non-Article
III judge in the consideration of their appeals, no mat-
ter how distinguished and well qualified the judge
might be, such a stipulation would not have cured the
plain defect in the composition of the panel.” Id., at
80–81.
I see no reason to treat this case differently than
Nguyen. Just as “Congress’ decision to preserve the Arti-
cle III character of the courts of appeals [was] more than a
trivial concern” in that case, id., at 80, so too here Con-
gress’ decision to preserve the Article III character of
felony trials “embodies weighty congressional policy con-
cerning the proper organization of the federal courts,” id.,
at 79. Accordingly, as in Nguyen, the Court can and
should correct the error in this case despite petitioner’s
failure to raise a timely objection below.
III
For the reasons stated, I would reverse the judgment of
the Court of Appeals and remand for a new trial.