1 (Slip Opinion) OCTOBER TERM, 2007

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 ma gistrate 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, an d the jury returned a guilty verdict
on all counts. Petitioner contended fo r 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 fe lony trial, pursuant to the Federal Magistrates Act, 28 U. S. C. §636(b )(3), which states: “A magistrate judge may be assigned such addition al 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 tria l, there are various poin ts at which rights ei

ther can be asserted or waived. This Court has indicated that some of these rights require the defendan t’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 wa ive his client’s statutory right to a speedy trial because “[s]chedulin g matters are plainly among those for which agreement by counsel generally controls.” Ibid. Similar to2 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 ju dge’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, requirin g 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 constitu tional significance so that the Act should be interpreted to require ex plicit consent. Serious concerns about the Act’s constitutionality ar e not present here, and petitioner concedes that magistrate judges are capable of competent and impar

tial performance when presid ing over jury selection. Gomez

, supra, at 876, distinguished. Pp. 2–12.

483 F. 3d 390, affirmed.

K ENNEDY
, J., delivered the opinion of the Court, in which R OBERTS

, C. J., and S TEVENS , S OUTER , G INSBURG , B REYER , and A LITO

, JJ., joined.
S CALIA

, J., filed an opinion concurring in the judgment. T HOMAS

, J., filed a dissenting opinion._________________

_________________ 1 Cite as: 553 U. S. ____ (2008)

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]

J USTICE K ENNEDY delivered the opinion of the Court.
If the parties consent, fe deral 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 Magis trate 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 an2 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 in fer 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 designated3 Cite as: 553 U. S. ____ (2008)

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 re sidual 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 aske d 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 acceptanc e 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 the5 Cite as: 553 U. S. ____ (2008)

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 sent encing 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 procedur e 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 su ffices to note that we have acknowledged that some righ ts 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 Hill6 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 without7 Cite as: 553 U. S. ____ (2008)

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 ever y 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 fo r 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”). Nu merous 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 judg ment, 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 law8 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 th e 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 , 5439 Cite as: 553 U. S. ____ (2008)

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 structural11 Cite as: 553 U. S. ____ (2008)

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 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 appropri ate 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 cons iderations 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 perso nal 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 examinat ion 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 not12 GONZALEZ v. UNITED STATES

Opinion of the Court

presented here. The judgment of the Court of Appeals is affirmed.

It is so ordered._________________

_________________ 1 Cite as: 553 U. S. ____ (2008)

S CALIA

, 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]

J USTICE S CALIA , 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 consente d 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” or2 GONZALEZ v. UNITED STATES

S CALIA

, 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 ag reed 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 de fendant 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 tr ial must be knowing and voluntary,3 Cite as: 553 U. S. ____ (2008)

S CALIA

, 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 an d voluntary requirement applies to the defendant himself, that still perm its counsel to waive on behalf of an informed and agreeing clie nt. 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

S CALIA

, 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 We 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 Ac t, 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).5 Cite as: 553 U. S. ____ (2008)

S CALIA

, 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 personal ly 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 pa rticipation, 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

S CALIA

, 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._________________

_________________ 1 Cite as: 553 U. S. ____ (2008)

T HOMAS

, 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]

J USTICE T HOMAS , 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 defend ant 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 conclu de that the error may be cor

rected despite petitioner’s failu re 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 that2 GONZALEZ v. UNITED STATES

T HOMAS

, 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 re asoned 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 Co ngress intended felony jury selection to be among magistra te judges’ additional duties but failed to provide an explic it 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 delegati on 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, the3 Cite as: 553 U. S. ____ (2008)

T HOMAS

, 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 dele gation 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) (T HOMAS

, J., dissenting). Peretz is both. Two con

siderations in particular convince me that Peretz should be
overruled.4 GONZALEZ v. UNITED STATES

T HOMAS

, 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 in stance 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 be fore felony jury selection may be delegated to a magis trate 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 co nsent, it likewise contains nothing indicating what consti tutes ‘consent’ to the dele

gation of an additional duty.” Peretz

, supra , at 947, n. 6 (Marshall, J., dissenting). Congress’ silence is particula rly 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 ju dges 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 have5 Cite as: 553 U. S. ____ (2008)

T HOMAS

, 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 wi th 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

T HOMAS

, J., dissenting

duct a misdemeanor trial. Instead, the Court worries that “requiring personal, on-the-recor d 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 requi red for delegation of civil and misdemeanor trials, that drove Gomez ’s analysis. 490

U. S., at 872 (“[T]he carefully defined grant of authority to7 Cite as: 553 U. S. ____ (2008)

T HOMAS

, 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 (S CALIA , 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 sele ction. 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] Co ngress believed a defendant’s explicit, personal consent wa s 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

T HOMAS

, 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 re flect 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) (T HOMAS

, 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 delegati on 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 (S CALIA , J., dissenting) (not resolving
“the serious and difficult cons titutional questions raised by the [majority’s] construction,” but suggesting that the Court’s reasoning rendered “the doctrine of unconstitu

tional delegation” “a dead letter”).9 Cite as: 553 U. S. ____ (2008)

T HOMAS

, J., dissenting

Today the Court’s result requi res 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 prev iously 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

T HOMAS

, 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.
J USTICE S CALIA 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, as11 Cite as: 553 U. S. ____ (2008)

T HOMAS

, 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 fa ct 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] se rious 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 subj ect 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 Suprem e 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 sile nce them—cannot pr event them from making independent judgments and ex pressing 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 their12 GONZALEZ v. UNITED STATES

T HOMAS

, 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 waiv er 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 (T HOMAS

, 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, th e 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).13 Cite as: 553 U. S. ____ (2008)

T HOMAS

, J., dissenting

dire to the Magistrate Judge, I must also address the Government’s alternative argu ment that petitioner for

feited his claim by failing to object to the delegation. Petitioner’s failure to obje ct, 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 embodi es 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 “e mbodie[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

T HOMAS

, 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.