(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 presiding 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 either 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 particular 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 attorney’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 impartial 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, Washington, 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 attorneys 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 responded: “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 Magistrate Judge’s presiding at voir dire. The United States 

Court of Appeals for the Fifth Circuit affirmed the convictions. 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 concerning 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 posttrial criminal relief, and conditions of confinement petitions. §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 inconsistent 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 selection 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 considered whether a magistrate judge could preside over voir 

dire in a felony case. In that instance, however, defendant’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 magistrate 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 additional 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 appear 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 petitioner 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 requirement 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 misdemeanor 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 defendant, 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 design, 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 various 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 another 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 counsel); 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 without the fully informed and publicly acknowledged consent 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 attorney.”’ 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 regarding 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 pursuant 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 Standards for Criminal Justice, Defense Function 4–5.2, Commentary, 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 conduct 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 evidence 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 instances 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 experience 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 requires 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, pursuant 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 magistrate 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 significance so that we should interpret the Act to require an

explicit personal statement of consent before the magistrate 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. Attorney 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 constitutionality.” Harris, supra, at 555; see also Reno v. Flores, 507 

U. S. 292, 314, n. 9 (1993). 

Those concerns are not present here. Petitioner concedes 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 errors.’” 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 District 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 review 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 presiding 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 defendant 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 importance). 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 harmlesserror 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 petitioner’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 discussed 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 attorney 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 petitioner’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 passing 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 personally 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 fundamental 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 

—————— 

1On 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 unrepresented defendant cannot possibly waive his right to counsel 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 applicable 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 purporting to apply it “have been brief and conclusionary.” 3 

W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §§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 voluntary 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 Constitution 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, specification in the Constitution is a necessary, but not sufficient, condition for “fundamental” status. But if something 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 answering 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. 

—————— 

2We have 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 complying with a legal rule). 
 

 

 

Cite as: 553 U. S. ____ (2008) 5 

SCALIA, J., concurring in judgment 

“A prisoner . . . who defends by counsel, and silently acquiesces 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 opinion, 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 Commonwealth 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 personal 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 counsel 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 forestall 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 consultation 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 Constitution 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 Magistrates 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 statutory error. I further conclude that the error may be corrected despite petitioner’s failure to raise a timely objection in the District Court. Accordingly, I would reverse 

the judgment below. 

I 

A 

This is the third time the Court has addressed the circumstances 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 defendants 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’ “carefully 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 “incongruous” 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 conclusion 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 magistrates”); id., at 875–876 (“The absence of a specific reference 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 function” (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. During 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, concluding 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 defendant 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 debate between the majority and dissenting opinions. Suffice it to say that, in my view, Gomez correctly interpreted

§636(b)(3) not to authorize delegation of felony jury selection regardless of the parties’ consent, and I agree with

the dissenters in Peretz that the Court’s contrary conclusion 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 selection if the parties consent. Although “[i]t is true that we 

give stronger stare decisis effect to our holdings in statutory cases than in constitutional cases,” that rule “is not 

absolute, and we should not hesitate to allow our precedent 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 considerations 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 answers 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 additional duty upon litigant consent, it likewise contains 

nothing indicating what constitutes ‘consent’ to the delegation 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, Congress took great care to specify whether and in what manner 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 consent 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 opinion), 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 defendant’s express, informed consent before a magistrate judge 

may conduct a misdemeanor trial. Section 636(a)(3) authorizes magistrate judges to conduct certain misdemeanor trials “in conformity with and subject to the limitations 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 magistrate judge. The magistrate judge may not proceed to 

try the case unless the defendant, 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.” §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 procedural requisites for consent are specified and a right cannot 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 interprets to permit delegation of felony proceedings without

the defendant’s “own informed consent,” expressly requires 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 magistrate 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 statute 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 delegation of felony jury selection is hardly surprising, since 

§636(b)(3)—which provides in its entirety that “[a] magistrate 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 inconsequential 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 selection”). And I share his view that Congress undoubtedly 

would have adopted something akin to §3401(b)’s requirements 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 Magistrates 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 principled 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 magistrate when the litigants consent”); cf. id., at 948–952 

(Marshall, J., dissenting) (discussing the “serious constitutional question” “whether jury selection by a magistrate—

even when a defendant consents—is consistent with Article 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 unconstitutional 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 Article 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 magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination 

and selection,” and because magistrate judges are supervised by Article III judges, ante, at 9, 10. Under our precedents, 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 required 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 inconsistent 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 Constitution 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 defendant” 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 judgment). 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 fundamental, 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 competent 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 generally—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 protections 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 Constitution. 

In short, if I accepted the Court’s dictum that the right

to a jury trial may be waived only by the defendant personally, 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 questions, 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 forfeited 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 requirements of the plain-error rule. It is true that petitioner 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 magistrate 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 concerning 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 composition of the federal courts of appeals,” id., at 80, and 

because those requirements “embodie[d] weighty congressional 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 expressly stipulated to the participation of a non-Article

III judge in the consideration of their appeals, no matter 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 Article III character of the courts of appeals [was] more than a

trivial concern” in that case, id., at 80, so too here Congress’ decision to preserve the Article III character of

felony trials “embodies weighty congressional policy concerning 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.