(Slip Opinion) OCTOBER TERM, 2014 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 

WELLNESS INTERNATIONAL NETWORK, LTD., ET AL. 

v. SHARIF 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SEVENTH CIRCUIT 

No. 13–935. Argued January 14, 2015—Decided May 26, 2015 

Respondent Richard Sharif tried to discharge a debt he owed petitioners, Wellness International Network, Ltd., and its owners (collectively Wellness), in his Chapter 7 bankruptcy. Wellness sought, inter 

alia, a declaratory judgment from the Bankruptcy Court, contending

that a trust Sharif claimed to administer was in fact Sharif’s alterego, and that its assets were his personal property and part of his

bankruptcy estate. The Bankruptcy Court eventually entered a default judgment against Sharif. While Sharif’s appeal was pending in

District Court, but before briefing concluded, this Court held that Article III forbids bankruptcy courts to enter a final judgment on claims 

that seek only to “augment” the bankruptcy estate and would otherwise “exis[t] without regard to any bankruptcy proceeding.” Stern v. 

Marshall, 564 U. S. ___, ___. After briefing closed, Sharif sought

permission to file a supplemental brief raising a Stern objection. The 

District Court denied the motion, finding it untimely, and affirmed

the Bankruptcy Court’s judgment. As relevant here, the Seventh 

Circuit determined that Sharif’s Stern objection could not be waived 

because it implicated structural interests and reversed on the alterego claim, holding that the Bankruptcy Court lacked constitutional

authority to enter final judgment on that claim. 

Held: 

1. Article III permits bankruptcy judges to adjudicate Stern claims 

with the parties’ knowing and voluntary consent. Pp. 8–17.

(a) The foundational case supporting the adjudication of legal 

disputes by non-Article III judges with the consent of the parties is 

Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833. There, 

the Court held that the right to adjudication before an Article III 
 

 

2 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Syllabus 

court is “personal” and therefore “subject to waiver.” Id., at 848. The 

Court also recognized that if Article III’s structural interests as “ ‘an

inseparable element of the constitutional system of checks and balances’ ” are implicated, “the parties cannot by consent cure the constitutional difficulty.” Id., at 850–851. The importance of consent was

reiterated in two later cases involving the Federal Magistrates Act’s

assignment of non-Article III magistrate judges to supervise voir dire 

in felony trials. In Gomez v. United States, 490 U. S. 858, the Court 

held that a magistrate judge was not permitted to select a jury without the defendant’s consent, id., at 864. But in Peretz v. United 

States, 501 U. S. 923, the Court stated that “the defendant’s consent 

significantly changes the constitutional analysis,” id., at 932. Because an Article III court retained supervisory authority over the

process, the Court found “no structural protections . . . implicated” 

and upheld the Magistrate Judge’s action. Id., at 937. Pp. 8–12.

(b) The question whether allowing bankruptcy courts to decide 

Stern claims by consent would “impermissibly threate[n] the institutional integrity of the Judicial Branch,” Schor, 478 U. S., at 851, must 

be decided “with an eye to the practical effect that the” practice “will

have on the constitutionally assigned role of the federal judiciary,” 

ibid. For several reasons, this practice does not usurp the constitutional prerogatives of Article III courts. Bankruptcy judges are appointed and may be removed by Article III judges, see 28 U. S. C.

§§152(a)(1), (e); “serve as judicial officers of the United States district

court,” §151; and collectively “constitute a unit of the district court”

for the district in which they serve, §152(a)(1). Bankruptcy courts 

hear matters solely on a district court’s reference, §157(a), and possess no free-floating authority to decide claims traditionally heard by

Article III courts, see Schor, 478 U. S., at 854, 856. “[T]he decision to 

invoke” the bankruptcy court’s authority “is left entirely to the parties,” id., at 855, and “the power of the federal judiciary to take jurisdiction” remains in place, ibid. Finally, there is no indication that

Congress gave bankruptcy courts the ability to decide Stern claims in 

an effort to aggrandize itself or humble the Judiciary. See, e.g., 

Peretz, 501 U. S., at 937. Pp. 12–15. 

(c) Stern does not compel a different result. It turned on the fact 

that the litigant “did not truly consent to” resolution of the claim

against it in a non-Article III forum, 564 U. S., at ___, and thus, does

not govern the question whether litigants may validly consent to adjudication by a bankruptcy court. Moreover, expanding Stern to hold 

that a litigant may not waive the right to an Article III court through 

consent would be inconsistent with that opinion’s own description of 

its holding as “a ‘narrow’ one” that did “not change all that much”

about the division of labor between district and bankruptcy courts. 
 

 

Cite as: 575 U. S. ____ (2015) 3 

Syllabus 

Id., at ___. Pp. 15–17.

2. Consent to adjudication by a bankruptcy court need not be express, but must be knowing and voluntary. Neither the Constitution 

nor the relevant statute—which requires “the consent of all parties to

the proceeding” to hear a Stern claim, §157(c)(2)—mandates express 

consent. Such a requirement would be in great tension with this

Court’s holding that substantially similar language in §636(c)—which

authorizes magistrate judges to conduct proceedings “[u]pon consent

of the parties”—permits waiver based on “actions rather than words,” 

Roell v. Withrow, 538 U. S. 580, 589. Roell’s implied consent standard supplies the appropriate rule for bankruptcy court adjudications

and makes clear that a litigant’s consent—whether express or implied—must be knowing and voluntary. Pp. 18–19. 

3. The Seventh Circuit should decide on remand whether Sharif’s 

actions evinced the requisite knowing and voluntary consent and 

whether Sharif forfeited his Stern argument below. P. 20. 

727 F. 3d 751, reversed and remanded. 

SOTOMAYOR, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined, and in which ALITO, J., 

joined in part. ALITO, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in 

which SCALIA, J., joined, and in which THOMAS, J., joined as to Part I. 

THOMAS, J., filed a dissenting opinion. 
 

 

_________________ 

_________________ 

Cite as: 575 U. S. ____ (2015) 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. 13–935 

WELLNESS INTERNATIONAL NETWORK, LIMITED, 

ET AL, PETITIONERS v. RICHARD SHARIF 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SEVENTH CIRCUIT 

[May 26, 2015] 

JUSTICE SOTOMAYOR delivered the opinion of the Court. 

Article III, §1, of the Constitution provides that “[t]he

judicial Power of the United States, shall be vested in one 

supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congress has in turn established 94 District Courts and 13

Courts of Appeals, composed of judges who enjoy the

protections of Article III: life tenure and pay that cannot

be diminished. Because these protections help to ensure

the integrity and independence of the Judiciary, “we have

long recognized that, in general, Congress may not withdraw from” the Article III courts “any matter which, from 

its nature, is the subject of a suit at the common law, or in

equity, or in admiralty.” Stern v. Marshall, 564 U. S. ___, 

___ (2011) (slip op., at 18) (internal quotation marks

omitted).

Congress has also authorized the appointment of bankruptcy and magistrate judges, who do not enjoy the protections of Article III, to assist Article III courts in their 

work. The number of magistrate and bankruptcy judgeships exceeds the number of circuit and district judge-
 

2 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

ships.1 And it is no exaggeration to say that without the

distinguished service of these judicial colleagues, the work 

of the federal court system would grind nearly to a halt.2 

Congress’ efforts to align the responsibilities of nonArticle III judges with the boundaries set by the Constitution have not always been successful. In Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 

(1982) (plurality opinion), and more recently in Stern, this 

Court held that Congress violated Article III by authorizing bankruptcy judges to decide certain claims for which 

litigants are constitutionally entitled to an Article III 

adjudication. This case presents the question whether

Article III allows bankruptcy judges to adjudicate such

claims with the parties’ consent. We hold that Article III 

is not violated when the parties knowingly and voluntarily 

consent to adjudication by a bankruptcy judge. 

I 

A 

Before 1978, district courts typically delegated bankruptcy proceedings to “referees.” Executive Benefits Ins. 

—————— 

1Congress has authorized 179 circuit judgeships and 677 district

judgeships, a total of 856. United States Courts, Status of Article III 

Judgeships, http://www.uscourts.gov/Statistics/JudicialBusiness/2014/

status-article-iii-judgeships.aspx (all Internet materials as visited 

May 22, 2015, and available in Clerk of Court’s case file). 

The number of authorized magistrate and bankruptcy judgeships

currently stands at 883: 534 full-time magistrate judgeships and 

349 bankruptcy judgeships. United States Courts, Appointments of

Magistrate Judges, http://www.uscourts.gov/Statistics/JudicialBusiness/

2014/appointments-magistrate-judges.aspx; United States Courts, 

Status of Bankruptcy Judgeships, http://www.uscourts.gov/Statistics/

JudicialBusiness/2014/status-bankruptcy-judgeships.aspx. 2Between October 1, 2013, and September 30, 2014, for example, 

litigants filed 963,739 cases in bankruptcy courts—more than 

double the total number filed in district and circuit courts. United 

States Courts, Judicial Caseload Indicators, http://www.uscourts.gov/

Statistics/JudicialBusiness/2014/judicial-caseload-indicators.aspx. 
Cite as: 575 U. S. ____ (2015) 3 

Opinion of the Court 

Agency v. Arkison, 573 U. S. ___, ___ (2014) (slip op., at 4). 

Under the Bankruptcy Act of 1898, bankruptcy referees

had “[s]ummary jurisdiction” over “claims involving ‘property in the actual or constructive possession of the bankruptcy court’”—that is, over the apportionment of the

bankruptcy estate among creditors. Ibid. (alteration

omitted). They could preside over other proceedings—

matters implicating the court’s “plenary jurisdiction”—by 

consent. Id., at ___ (slip op., at 5); see also MacDonald v. 

Plymouth County Trust Co., 286 U. S. 263, 266–267 

(1932).

In 1978, Congress enacted the Bankruptcy Reform Act,

which repealed the 1898 Act and gave the newly created 

bankruptcy courts power “much broader than that exercised under the former referee system.” Northern Pipeline, 458 U. S., at 54. The Act “[e]liminat[ed] the distinction between ‘summary’ and ‘plenary’ jurisdiction” and 

enabled bankruptcy courts to decide “all ‘civil proceedings 

arising under title 11 [the Bankruptcy title] or arising 

in or related to cases under title 11.’” Ibid. (emphasis deleted). Congress thus vested bankruptcy judges with most 

of the “‘powers of a court of equity, law, and admiralty,’” id., 

at 55, without affording them the benefits of Article III. 

This Court therefore held parts of the system unconstitutional in Northern Pipeline. 

Congress responded by enacting the Bankruptcy

Amendments and Federal Judgeship Act of 1984. Under 

that Act, district courts have original jurisdiction over

bankruptcy cases and related proceedings. 28 U. S. C. 

§§1334(a), (b). But “[e]ach district court may provide that 

any or all” bankruptcy cases and related proceedings

“shall be referred to the bankruptcy judges for the district.” §157(a). Bankruptcy judges are “judicial officers of 

the United States district court,” appointed to 14-year 

terms by the courts of appeals, and subject to removal for 

cause. §§152(a)(1), (e). “The district court may withdraw” 
 

 

4 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

a reference to the bankruptcy court “on its own motion or

on timely motion of any party, for cause shown.” §157(d).

When a district court refers a case to a bankruptcy 

judge, that judge’s statutory authority depends on whether

Congress has classified the matter as a “[c]ore proceedin[g]” or a “[n]on-core proceedin[g],” §§157(b)(2), (4)—much

as the authority of bankruptcy referees, before the 1978

Act, depended on whether the proceeding was “summary” 

or “plenary.” Congress identified as “[c]ore” a nonexclusive list of 16 types of proceedings, §157(b)(2), in which it

thought bankruptcy courts could constitutionally enter 

judgment.3 Congress gave bankruptcy courts the power to 

“hear and determine” core proceedings and to “enter appropriate orders and judgments,” subject to appellate

review by the district court. §157(b)(1); see §158. But it 

gave bankruptcy courts more limited author-ity in noncore proceedings: They may “hear and determine” such

proceedings, and “enter appropriate orders and judgments,” only “with the consent of all the parties to the

proceeding.” §157(c)(2). Absent consent, bankruptcy 

courts in non-core proceedings may only “submit proposed 

findings of fact and conclusions of law,” which the district

courts review de novo. §157(c)(1). 

B 

Petitioner Wellness International Network is a manufacturer of health and nutrition products.4 Wellness and 

respondent Sharif entered into a contract under which

Sharif would distribute Wellness’ products. The relationship quickly soured, and in 2005, Sharif sued Wellness in 

—————— 

3Congress appears to have drawn the term “core” from Northern 

Pipeline’s description of “the restructuring of debtor-creditor relations”

as “the core of the federal bankruptcy power.” Northern Pipeline 

Constr. Co. v. Marathon Pipe Line Co., 458 U. S., 50, 71 (1982). 4 Individual petitioners Ralph and Cathy Oats are Wellness’ founders. 

This opinion refers to all petitioners collectively as “Wellness.” 
 

Cite as: 575 U. S. ____ (2015) 5 

Opinion of the Court 

the United States District Court for the Northern District 

of Texas. Sharif repeatedly ignored Wellness’ discovery 

requests and other litigation obligations, resulting in an

entry of default judgment for Wellness. The District Court 

eventually sanctioned Sharif by awarding Wellness over 

$650,000 in attorney’s fees. This case arises from Wellness’ long-running—and so far unsuccessful—efforts to 

collect on that judgment. 

In February 2009, Sharif filed for Chapter 7 bankruptcy 

in the Northern District of Illinois. The bankruptcy petition listed Wellness as a creditor. Wellness requested

documents concerning Sharif ’s assets, which Sharif did 

not provide. Wellness later obtained a loan application 

Sharif had filed in 2002, listing more than $5 million in 

assets. When confronted, Sharif informed Wellness and 

the Chapter 7 trustee that he had lied on the loan application. The listed assets, Sharif claimed, were actually 

owned by the Soad Wattar Living Trust (Trust), an entity 

Sharif said he administered on behalf of his mother, and 

for the benefit of his sister. Wellness pressed Sharif 

for information on the Trust, but Sharif again failed to 

respond.

Wellness filed a five-count adversary complaint against 

Sharif in the Bankruptcy Court. See App. 5–22. Counts 

I–IV of the complaint objected to the discharge of Sharif ’s

debts because, among other reasons, Sharif had concealed 

property by claiming that it was owned by the Trust.

Count V of the complaint sought a declaratory judgment 

that the Trust was Sharif ’s alter ego and that its assets 

should therefore be treated as part of Sharif ’s bankruptcy 

estate. Id., at 21. In his answer, Sharif admitted that the 

adversary proceeding was a “core proceeding” under 28 

U. S. C. §157(b)—i.e., a proceeding in which the Bankruptcy 

Court could enter final judgment subject to appeal. See 

§§157(b)(1), (2)(J); App. 24. Indeed, Sharif requested

judgment in his favor on all counts of Wellness’ complaint 
 

 

6 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

and urged the Bankruptcy Court to “find that the Soad

Wattar Living Trust is not property of the [bankruptcy] 

estate.” Id., at 44. 

A familiar pattern of discovery evasion ensued. Wellness responded by filing a motion for sanctions, or, in the

alternative, to compel discovery. Granting the motion to 

compel, the Bankruptcy Court warned Sharif that if he did 

not respond to Wellness’ discovery requests a default

judgment would be entered against him. Sharif eventually complied with some discovery obligations, but did not 

produce any documents related to the Trust.

In July 2010, the Bankruptcy Court issued a ruling 

finding that Sharif had violated the court’s discovery 

order. See App. to Pet. for Cert. 92a–120a. It accordingly 

denied Sharif ’s request to discharge his debts and entered 

a default judgment against him in the adversary proceeding. And it declared, as requested by count V of Wellness’ 

complaint, that the assets supposedly held by the Trust

were in fact property of Sharif ’s bankruptcy estate because Sharif “treats [the Trust’s] assets as his own property.” Id., at 119a. 

Sharif appealed to the District Court. Six weeks before 

Sharif filed his opening brief in the District Court, this

Court decided Stern. In Stern, the Court held that Article 

III prevents bankruptcy courts from entering final judgment on claims that seek only to “augment” the bankruptcy 

estate and would otherwise “exis[t] without regard to 

any bankruptcy proceeding.” 564 U. S., at ___, ___ (slip 

op., at 27, 34). Sharif did not cite Stern in his opening 

brief. Rather, after the close of briefing, Sharif moved for

leave to file a supplemental brief, arguing that in light of 

In re Ortiz, 665 F. 3d 906 (CA7 2011)—a recently issued 

decision interpreting Stern—“the bankruptcy court’s order 

should only be treated as a report and recommendation.”

App. 145. The District Court denied Sharif's motion for 

supplemental briefing as untimely and affirmed the Bank-
Cite as: 575 U. S. ____ (2015) 7 

Opinion of the Court 

ruptcy Court’s judgment. 

The Court of Appeals for the Seventh Circuit affirmed in

part and reversed in part. 727 F. 3d 751 (2013). The 

Seventh Circuit acknowledged that ordinarily Sharif ’s 

Stern objection would “not [be] preserved because he

waited too long to assert it.” 727 F. 3d, at 767.5 But the 

court determined that the ordinary rule did not apply

because Sharif ’s argument concerned “the allocation of 

authority between bankruptcy courts and district courts” 

under Article III, and thus “implicate[d] structural interests.” Id., at 771. Based on those separation-of-powers 

considerations, the court held that “a litigant may not 

waive” a Stern objection. Id., at 773. Turning to the 

merits of Sharif ’s contentions, the Seventh Circuit agreed

with the Bankruptcy Court’s resolution of counts I–IV of 

Wellness’ adversary complaint. It further concluded, 

however, that count V of the complaint alleged a so-called 

“Stern claim,” that is, “a claim designated for final adjudication in the bankruptcy court as a statutory matter, but 

prohibited from proceeding in that way as a constitutional

matter.” Executive Benefits, 573 U. S., at ___ (slip op., at 

4). The Seventh Circuit therefore ruled that the Bankruptcy Court lacked constitutional authority to enter final 

judgment on count V.6 

—————— 

5Although the Seventh Circuit referred to Sharif’s failure to raise his 

Stern argument in a timely manner as a waiver, that court has since

clarified that its decision rested on forfeiture. See Peterson v. Somers 

Dublin Ltd., 729 F. 3d 741, 747 (2013) (“The issue in Wellness International Network was forfeiture rather than waiver”). 6The Seventh Circuit concluded its opinion by considering the remedy for the Bankruptcy Court’s purportedly unconstitutional issuance 

of a final judgment. The court determined that if count V of Wellness’ 

complaint raised a core claim, the only statutorily authorized remedy 

would be for the District Court to withdraw the reference to the Bankruptcy Court and set a new discovery schedule. The Seventh Circuit’s 

reasoning on this point was rejected by our decision last Term in 

Executive Benefits, which held that district courts may treat Stern 
 

8 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

We granted certiorari, 573 U. S. ___ (2014), and now 

reverse the judgment of the Seventh Circuit.7 

II 

Our precedents make clear that litigants may validly

consent to adjudication by bankruptcy courts. 

A 

Adjudication by consent is nothing new. Indeed, 

“[d]uring the early years of the Republic, federal courts, 

with the consent of the litigants, regularly referred adjudication of entire disputes to non-Article III referees, masters, or arbitrators, for entry of final judgment in accordance with the referee’s report.” Brubaker, The 

Constitutionality of Litigant Consent to Non-Article III 

Bankruptcy Adjudications, 32 Bkrtcy. L. Letter No. 12, p.6 

(Dec. 2012); see, e.g., Thornton v. Carson, 7 Cranch 596, 

597 (1813) (affirming damages awards in two actions that

“were referred, by consent under a rule of Court to arbitrators”); Heckers v. Fowler, 2 Wall. 123, 131 (1865) (observing that the “[p]ractice of referring pending actions under

a rule of court, by consent of parties, was well known at

common law,” and “is now universally regarded . . . as the 

proper foundation of judgment”); Newcomb v. Wood, 97 

U. S. 581, 583 (1878) (recognizing “[t]he power of a court of

justice, with the consent of the parties, to appoint arbitrators and refer a case pending before it”).

The foundational case in the modern era is Commodity 

Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986). 

—————— 

claims like non-core claims and thus are not required to restart proceedings entirely when a bankruptcy court improperly enters final 

judgment. 7Because the Court concludes that the Bankruptcy Court could validly enter judgment on Wellness’ claim with the parties’ consent, this 

opinion does not address, and expresses no view on, Wellness’ alternative contention that the Seventh Circuit erred in concluding the claim 

in count V of its complaint was a Stern claim. 
 

 

Cite as: 575 U. S. ____ (2015) 9 

Opinion of the Court 

The Commodity Futures Trading Commission (CFTC), 

which Congress had authorized to hear customer complaints against commodities brokers, issued a regulation 

allowing itself to hear state-law counterclaims as well. 

William Schor filed a complaint with the CFTC against his 

broker, and the broker, which had previously filed claims

against Schor in federal court, refiled them as counterclaims in the CFTC proceeding. The CFTC ruled against 

Schor on the counterclaims. This Court upheld that ruling 

against both statutory and constitutional challenges.

On the constitutional question (the one relevant here) 

the Court began by holding that Schor had “waived any 

right he may have possessed to the full trial of [the broker’s] counterclaim before an Article III court.” Id., at 849. 

The Court then explained why this waiver legitimated the

CFTC’s exercise of authority: “[A]s a personal right, Article III’s guarantee of an impartial and independent federal 

adjudication is subject to waiver, just as are other personal constitutional rights”—such as the right to a jury—

“that dictate the procedures by which civil and criminal 

matters must be tried.” Id., at 848–849. 

The Court went on to state that a litigant’s waiver of his

“personal right” to an Article III court is not always dispositive because Article III “not only preserves to litigants

their interest in an impartial and independent federal 

adjudication of claims . . . , but also serves as ‘an inseparable element of the constitutional system of checks and 

balances.’ . . . To the extent that this structural principle 

is implicated in a given case”—but only to that extent—

“the parties cannot by consent cure the constitutional

difficulty . . . .” Id., at 850–851. 

Leaning heavily on the importance of Schor’s consent,

the Court found no structural concern implicated by the 

CFTC’s adjudication of the counterclaims against him.

While “Congress gave the CFTC the authority to adjudicate such matters,” the Court wrote, 
 

 

10 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

“the decision to invoke this forum is left entirely to the

parties and the power of the federal judiciary to take 

jurisdiction of these matters is unaffected. In such 

circumstances, separation of powers concerns are diminished, for it seems self-evident that just as Congress may encourage parties to settle a dispute out of 

court or resort to arbitration without impermissible

incursions on the separation of powers, Congress may

make available a quasi-judicial mechanism through

which willing parties may, at their option, elect to resolve their differences.” Id., at 855. 

The option for parties to submit their disputes to a nonArticle III adjudicator was at most a “de minimis” infringement on the prerogative of the federal courts. Id., at 

856. 

A few years after Schor, the Court decided a pair of 

cases—Gomez v. United States, 490 U. S. 858 (1989), and 

Peretz v. United States, 501 U. S. 923 (1991)—that reiterated the importance of consent to the constitutional analysis. Both cases concerned whether the Federal Magistrates Act authorized magistrate judges to preside over 

jury selection in a felony trial;8 the difference was that 

Peretz consented to the practice while Gomez did not.

That difference was dispositive.

In Gomez, the Court interpreted the statute as not

allowing magistrate judges to supervise voir dire without 

consent, emphasizing the constitutional concerns that

might otherwise arise. See 490 U. S., at 864. In Peretz, 

the Court upheld the Magistrate Judge’s action, stating

that “the defendant’s consent significantly changes the 

constitutional analysis.” 501 U. S., at 932. The Court 

—————— 

8 In relevant part, the Act provides that district courts may assign 

magistrate judges certain enumerated duties as well as “such additional

duties as are not inconsistent with the Constitution and the laws of 

the United States.” 28 U. S. C. §636(b)(3). 
 

Cite as: 575 U. S. ____ (2015) 11 

Opinion of the Court 

concluded that allowing a magistrate judge to supervise 

jury selection—with consent—does not violate Article III,

explaining that “litigants may waive their personal right 

to have an Article III judge preside over a civil trial,” id., 

at 936 (citing Schor, 478 U. S., at 848), and that “[t]he

most basic rights of criminal defendants are similarly 

subject to waiver,” 501 U. S., at 936. And “[e]ven assuming that a litigant may not waive structural protections 

provided by Article III,” the Court found “no such structural protections . . . implicated by” a magistrate judge’s

supervision of voir dire: 

“Magistrates are appointed and subject to removal by 

Article III judges. The ‘ultimate decision’ whether to 

invoke the magistrate’s assistance is made by the district court, subject to veto by the parties. The decision 

whether to empanel the jury whose selection a magistrate has supervised also remains entirely with the

district court. Because ‘the entire process takes place 

under the district court’s total control and jurisdiction,’ there is no danger that use of the magistrate involves a ‘congressional attemp[t] “to transfer jurisdiction [to non-Article III tribunals] for the purpose of

emasculating” constitutional courts.’” Id., at 937 (citations omitted; alteration in original).9

 The lesson of Schor, Peretz, and the history that preceded them is plain: The entitlement to an Article III adjudicator is “a personal right” and thus ordinarily “subject to 

—————— 

9Discounting the relevance of Gomez and Peretz, the principal dissent

emphasizes that neither case concerned the entry of final judgment by

a non-Article III actor. See post, at 16 (opinion of ROBERTS, C. J.). Here 

again, the principal dissent’s insistence on formalism leads it astray.

As we explained in Peretz, the “responsibility and importance [of] 

presiding over voir dire at a felony trial” is equivalent to the “supervision of entire civil and misdemeanor trials,” 501 U. S., at 933, tasks in 

which magistrate judges may “order the entry of judgment” with the 

parties’ consent, §636(c)(1). 
 

 

12 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

waiver,” Schor, 478 U. S., at 848. Article III also serves a 

structural purpose, “barring congressional attempts ‘to 

transfer jurisdiction [to non-Article III tribunals] for the

purpose of emasculating’ constitutional courts and thereby

prevent[ing] ‘the encroachment or aggrandizement of one

branch at the expense of the other.’” Id., at 850 (citations

omitted). But allowing Article I adjudicators to decide 

claims submitted to them by consent does not offend the

separation of powers so long as Article III courts retain 

supervisory authority over the process. 

B 

The question here, then, is whether allowing bankruptcy 

courts to decide Stern claims by consent would “impermissibly threate[n] the institutional integrity of the Judicial Branch.” Schor, 478 U. S., at 851. And that question

must be decided not by “formalistic and unbending rules,” 

but “with an eye to the practical effect that the” practice

“will have on the constitutionally assigned role of the

federal judiciary.” Ibid.; see Thomas v. Union Carbide 

Agricultural Products Co., 473 U. S. 568, 587 (1985) 

(“[P]ractical attention to substance rather than doctrinaire

reliance on formal categories should inform application of

Article III”). The Court must weigh 

“the extent to which the essential attributes of judicial

power are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally

vested only in Article III courts, the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.” Schor, 478 U. S., at 851 

(internal quotation marks omitted). 

Applying these factors, we conclude that allowing bankruptcy litigants to waive the right to Article III adjudica-
Cite as: 575 U. S. ____ (2015) 13 

Opinion of the Court 

tion of Stern claims does not usurp the constitutional 

prerogatives of Article III courts. Bankruptcy judges, like 

magistrate judges, “are appointed and subject to removal 

by Article III judges,” Peretz, 501 U. S., at 937; see 28 

U. S. C. §§152(a)(1), (e). They “serve as judicial officers of 

the United States district court,” §151, and collectively 

“constitute a unit of the district court” for that district, 

§152(a)(1). Just as “[t]he ‘ultimate decision’ whether to

invoke [a] magistrate [judge]’s assistance is made by the 

district court,” Peretz, 501 U. S., at 937, bankruptcy courts 

hear matters solely on a district court’s reference, §157(a),

which the district court may withdraw sua sponte or at the 

request of a party, §157(d). “[S]eparation of powers concerns are diminished” when, as here, “the decision to 

invoke [a non-Article III] forum is left entirely to the

parties and the power of the federal judiciary to take 

jurisdiction” remains in place. Schor, 478 U. S., at 855. 

Furthermore, like the CFTC in Schor, bankruptcy

courts possess no free-floating authority to decide claims

traditionally heard by Article III courts. Their ability to

resolve such matters is limited to “a narrow class of common law claims as an incident to the [bankruptcy courts’]

primary, and unchallenged, adjudicative function.” Id., at 

854. “In such circumstances, the magnitude of any intrusion on the Judicial Branch can only be termed de minimis.” Id., at 856. 

Finally, there is no indication that Congress gave bankruptcy courts the ability to decide Stern claims in an effort 

to aggrandize itself or humble the Judiciary. As in Peretz, 

“[b]ecause ‘the entire process takes place under the district

court’s total control and jurisdiction,’ there is no danger

that use of the [bankruptcy court] involves a ‘congressional attemp[t] “to transfer jurisdiction [to non-Article III 

tribunals] for the purpose of emasculating” constitutional 

courts.’” 501 U. S., at 937 (citation omitted); see also 

Schor, 478 U. S., at 855 (allowing CFTC’s adjudication of 
 

 

14 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

counterclaims because of “the degree of judicial control

saved to the federal courts, as well as the congressional 

purpose behind the jurisdictional delegation, the demonstrated need for the delegation, and the limited nature of 

the delegation” (citation omitted)); Pacemaker Diagnostic 

Clinic of America, Inc. v. Instromedix, Inc., 725 F. 2d 537, 

544 (CA9 1984) (en banc) (Kennedy, J.) (magistrate judges

may adjudicate civil cases by consent because the Federal 

Magistrates Act “invests the Article III judiciary with

extensive administrative control over the management,

composition, and operation of the magistrate system”).10 

Congress could choose to rest the full share of the Judiciary’s labor on the shoulders of Article III judges. But 

doing so would require a substantial increase in the number of district judgeships. Instead, Congress has supplemented the capacity of district courts through the able 

—————— 

10The principal dissent accuses us of making Sharif’s consent “‘dispositive’ in curing [a] structural separation of powers violation,” contrary to the holding of Schor. Post, at 16. That argument misapprehends 

both Schor and the nature of our analysis. What Schor forbids is using 

consent to excuse an actual violation of Article III. See 478 U. S., at 

850–851 (“To the extent that th[e] structural principle [protected by

Article III] is implicated in a given case, the parties cannot by consent 

cure the constitutional difficulty . . .” (emphasis added)). But Schor 

confirms that consent remains highly relevant when determining, as we 

do here, whether a particular adjudication in fact raises constitutional 

concerns. See id., at 855 (“separation of powers concerns are diminished” when “the decision to invoke [a non-Article III] forum is left

entirely to the parties”). Thus, we do not rely on Sharif’s consent to

“cur[e]” a violation of Article III. His consent shows, in part, why no

such violation has occurred. Cf. Meltzer, Legislative Courts, Legislative Power, and the Constitution, 65 Ind. L. J. 291, 303 (1990) 

(“[C]onsent provides, if not complete, at least very considerable reason

to doubt that the tribunal poses a serious threat to the ideal of federal 

adjudicatory independence”); Fallon, Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915, 992 (1988)

(when the parties consent, “there is substantial assurance that the

agency is not generally behaving arbitrarily or otherwise offending 

separation-of-powers values. Judicial integrity is not at risk”). 
Cite as: 575 U. S. ____ (2015) 15 

Opinion of the Court 

assistance of bankruptcy judges. So long as those judges

are subject to control by the Article III courts, their work

poses no threat to the separation of powers. 

C 

Our recent decision in Stern, on which Sharif and the 

principal dissent rely heavily, does not compel a different 

result. That is because Stern—like its predecessor, Northern Pipeline—turned on the fact that the litigant “did not 

truly consent to” resolution of the claim against it in a 

non-Article III forum. 564 U. S., at ___ (slip op., at 27). 

 To understand Stern, it is necessary to first understand 

Northern Pipeline. There, the Court considered whether 

bankruptcy judges “could ‘constitutionally be vested with

jurisdiction to decide [a] state-law contract claim’ against

an entity that was not otherwise part of the bankruptcy

proceedings.” 564 U. S., at ___ (slip op., at 19). In answering that question in the negative, both the plurality and 

then-Justice Rehnquist, concurring in the judgment, noted

that the entity in question did not consent to the bankruptcy court’s adjudication of the claim. See 458 U. S., at 

80, n. 31 (plurality opinion); id., at 91 (opinion of 

Rehnquist, J.). The Court confirmed in two later cases 

that Northern Pipeline turned on the lack of consent. See 

Schor, 478 U. S., at 849 (“[I]n Northern Pipeline, . . . the 

absence of consent to an initial adjudication before a nonArticle III tribunal was relied on as a significant factor in 

determining that Article III forbade such adjudication”); 

Thomas, 473 U. S., at 584. 

Stern presented the same scenario. The majority cited 

the dissent’s observation that Northern Pipeline “establish[ed] only that Congress may not vest in a non-Article 

III court the power to adjudicate, render final judgment, 

and issue binding orders in a traditional contract action 

arising under state law, without consent of the litigants,

and subject only to ordinary appellate review,” 564 U. S., 
 

 

 

16 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

at ___ (slip op., at 28–29) (emphasis added; internal quotation marks omitted). To which the majority responded,

“Just so: Substitute ‘tort’ for ‘contract,’ and that statement 

directly covers this case.” Id., at ___ (slip op., at 29); see 

also id., at ___ (slip op., at 27) (defendant litigated in the 

Bankruptcy Court because he “had nowhere else to go” to

pursue his claim). Because Stern was premised on nonconsent to adjudication by the Bankruptcy Court, the

“constitutional bar” it announced, see post, at 14 

(ROBERTS, C. J., dissenting), simply does not govern the 

question whether litigants may validly consent to adjudication by a bankruptcy court.

An expansive reading of Stern, moreover, would be 

inconsistent with the opinion’s own description of its 

holding. The Court in Stern took pains to note that the 

question before it was “a ‘narrow’ one,” and that its answer 

did “not change all that much” about the division of labor

between district courts and bankruptcy courts. Id., at ___ 

(slip op., at 37); see also id., at ___ (slip op., at 38) (stating

that Congress had exceeded the limitations of Article III

“in one isolated respect”). That could not have been a fair 

characterization of the decision if it meant that bankruptcy judges could no longer exercise their longstanding

authority to resolve claims submitted to them by consent.

Interpreting Stern to bar consensual adjudications by

bankruptcy courts would “meaningfully chang[e] the 

division of labor” in our judicial system, contra, id., at ___ 

(slip op., at 37).11 

—————— 

11 In advancing its restrictive view of Stern, the principal dissent

ignores the sweeping jurisprudential implications of its position. If, as 

the principal dissent suggests, consent is irrelevant to the Article III 

analysis, it is difficult to see how Schor and Peretz were not wrongly 

decided. But those decisions obviously remain good law. It is the 

principal dissent’s position that breaks with our precedents. See Plaut 

v. Spendthrift Farm, Inc., 514 U. S. 211, 231 (1995) (“[T]he proposition

that legal defenses based upon doctrines central to the courts’ struc-
 

Cite as: 575 U. S. ____ (2015) 17 

Opinion of the Court 

In sum, the cases in which this Court has found a violation of a litigant’s right to an Article III decisionmaker 

have involved an objecting defendant forced to litigate 

involuntarily before a non-Article III court. The Court has 

never done what Sharif and the principal dissent would 

have us do—hold that a litigant who has the right to an

Article III court may not waive that right through his 

consent. 

D 

The principal dissent warns darkly of the consequences

of today’s decision. See post, at 17–20. To hear the principal dissent tell it, the world will end not in fire, or ice, but

in a bankruptcy court. The response to these ominous 

predictions is the same now as it was when Justice Brennan, dissenting in Schor, first made them nearly 30 years 

ago: 

“This is not to say, of course, that if Congress created

a phalanx of non-Article III tribunals equipped to

handle the entire business of the Article III courts 

without any Article III supervision or control and

without evidence of valid and specific legislative necessities, the fact that the parties had the election to

proceed in their forum of choice would necessarily

save the scheme from constitutional attack. But this 

case obviously bears no resemblance to such a scenario . . . .” 478 U. S., at 855 (citations omitted). 

Adjudication based on litigant consent has been a consistent feature of the federal court system since its inception. Reaffirming that unremarkable fact, we are confident, poses no great threat to anyone’s birthrights,

constitutional or otherwise. 

—————— 

tural independence can never be waived simply does not accord with

our cases”).
 
 

18 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

III 

Sharif contends that to the extent litigants may validly 

consent to adjudication by a bankruptcy court, such consent must be express. We disagree.

Nothing in the Constitution requires that consent to

adjudication by a bankruptcy court be express. Nor does 

the relevant statute, 28 U. S. C. §157, mandate express 

consent; it states only that a bankruptcy court must obtain

“the consent”—consent simpliciter—“of all parties to the

proceeding” before hearing and determining a non-core

claim. §157(c)(2). And a requirement of express consent 

would be in great tension with our decision in Roell v. 

Withrow, 538 U. S. 580 (2003). That case concerned the 

interpretation of §636(c), which authorizes magistrate

judges to “conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the

case,” with “the consent of the parties.”12 The specific 

question in Roell was whether, as a statutory matter, the 

“consent” required by §636(c) had to be express. The 

dissent argued that “[r]eading §636(c)(1) to require express consent not only is more consistent with the text of 

—————— 

12Consistent with our precedents, the Courts of Appeals have unanimously upheld the constitutionality of §636(c). See Sinclair v. Wainwright, 814 F. 2d 1516, 1519 (CA11 1987); Bell & Beckwith v. United 

States, 766 F. 2d 910, 912 (CA6 1985); Gairola v. Virginia Dept. of Gen. 

Servs., 753 F. 2d 1281, 1285 (CA4 1985); D. L. Auld Co. v. Chroma 

Graphics Corp., 753 F. 2d 1029, 1032 (CA Fed. 1985); United States v. 

Dobey, 751 F. 2d 1140, 1143 (CA10 1985); Fields v. Washington Metropolitan Area Transit Auth., 743 F. 2d 890, 893 (CADC 1984); Geras v. 

Lafayette Display Fixtures, Inc., 742 F. 2d 1037, 1045 (CA7 1984); 

Lehman Bros. Kuhn Loeb Inc. v. Clark Oil & Refining Corp., 739 F. 2d 

1313, 1316 (CA8 1984) (en banc); Puryear v. Ede’s Ltd., 731 F. 2d 1153, 

1154 (CA5 1984); Goldstein v. Kelleher, 728 F. 2d 32, 36 (CA1 1984); 

Collins v. Foreman, 729 F. 2d 108, 115–116 (CA2 1984); Pacemaker 

Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F. 2d 537, 540 (CA9 

1984) (en banc) (Kennedy, J.); Wharton-Thomas v. United States, 721 F. 

2d 922, 929–930 (CA3 1983). 
 

Cite as: 575 U. S. ____ (2015) 19 

Opinion of the Court 

the statute, but also” avoids constitutional concerns by 

“ensur[ing] that the parties knowingly and voluntarily 

waive their right to an Article III judge.” 538 U. S., at 595 

(opinion of THOMAS, J.). But the majority—thus placed on

notice of the constitutional concern—was untroubled by it,

opining that “the Article III right is substantially honored”

by permitting waiver based on “actions rather than 

words.” Id., at 589, 590. 

The implied consent standard articulated in Roell supplies the appropriate rule for adjudications by bankruptcy

courts under §157. Applied in the bankruptcy context, 

that standard possesses the same pragmatic virtues—

increasing judicial efficiency and checking gamesmanship—that motivated our adoption of it for consent-based 

adjudications by magistrate judges. See id., at 590. It 

bears emphasizing, however, that a litigant’s consent—

whether express or implied—must still be knowing and

voluntary. Roell makes clear that the key inquiry is 

whether “the litigant or counsel was made aware of the 

need for consent and the right to refuse it, and still voluntarily appeared to try the case” before the non-Article III 

adjudicator. Ibid.; see also id., at 588, n. 5 (“notification of 

the right to refuse” adjudication by a non-Article III court

“is a prerequisite to any inference of consent”).13 

—————— 

13Even though the Constitution does not require that consent be 

express, it is good practice for courts to seek express statements of

consent or nonconsent, both to ensure irrefutably that any waiver of the

right to Article III adjudication is knowing and voluntary and to limit

subsequent litigation over the consent issue. Statutes or judicial rules 

may require express consent where the Constitution does not. Indeed, 

the Federal Rules of Bankruptcy Procedure already require that 

pleadings in adversary proceedings before a bankruptcy court “contain

a statement that the proceeding is core or non-core and, if non-core,

that the pleader does or does not consent to entry of final orders or 

judgment by the bankruptcy judge.” Fed. Rule Bkrtcy. Proc. 7008

(opening pleadings); see Fed. Rule Bkrtcy. Proc. 7012 (responsive 

pleadings). The Bankruptcy Court and the parties followed that 
 

 

20 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of the Court 

IV 

It would be possible to resolve this case by determining 

whether Sharif in fact consented to the Bankruptcy

Court’s adjudication of count V of Wellness’ adversary

complaint. But reaching that determination would require a deeply factbound analysis of the procedural history 

unique to this protracted litigation. Our resolution of the 

consent question—unlike the antecedent constitutional

question—would provide little guidance to litigants or the 

lower courts. Thus, consistent with our role as “a court of 

review, not of first view,” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___ (2014) (slip op., at 14) (internal quotation marks omitted), we leave it to the Seventh Circuit to decide on remand whether Sharif ’s actions 

evinced the requisite knowing and voluntary consent, and 

also whether, as Wellness contends, Sharif forfeited his 

Stern argument below. 

* * * 

The Court holds that Article III permits bankruptcy

courts to decide Stern claims submitted to them by consent. The judgment of the United States Court of Appeals 

for the Seventh Circuit is therefore reversed, and the case 

is remanded for further proceedings consistent with this

opinion. 

It is so ordered. 

—————— 

procedure in this case. See App. 6, 24; supra, at 5–6. And this Court 

recently submitted to Congress, pursuant to the Rules Enabling Act,

proposed amendments to Rules 7008 and 7012 that remove references

to the core/non-core distinction and thus require parties in all bankruptcy proceedings to state expressly whether they consent to the

bankruptcy court’s entry of judgment. Report of the Judicial Conference, Committee on Rules of Practice and Procedure, pp. 6, 7, 9. (Sept. 

2013). 
_________________ 

_________________ 

 

Cite as: 575 U. S. ____ (2015) 1 

Opinion of ALITO, J. 

SUPREME COURT OF THE UNITED STATES 

No. 13–935 

WELLNESS INTERNATIONAL NETWORK, LIMITED, 

ET AL, PETITIONERS v. RICHARD SHARIF 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SEVENTH CIRCUIT 

[May 26, 2015] 

JUSTICE ALITO, concurring in part and concurring in the

judgment. 

I join the opinion of the Court insofar as it holds that a 

bankruptcy judge’s resolution of a “Stern claim”* with the 

consent of the parties does not violate Article III of the 

Constitution. The Court faithfully applies Commodity 

Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986). 

No one believes that an arbitrator exercises “[t]he judicial

Power of the United States,” Art. III, §1, in an ordinary, 

run-of-the mill arbitration. And whatever differences 

there may be between an arbitrator’s “decision” and a

bankruptcy court’s “judgment,” those differences would 

seem to fall within the Court’s previous rejection of “formalistic and unbending rules.” Schor, supra, at 851. 

Whatever one thinks of Schor, it is still the law of this 

Court, and the parties do not ask us to revisit it. 

Unlike the Court, however, I would not decide whether 

consent may be implied. While the Bankruptcy Act just

speaks of “consent,” 28 U. S. C. §157(c)(2), the Federal

Rules of Bankruptcy Procedure provide that “[i]n non-core

proceedings final orders and judgments shall not be en-

—————— 

*See Stern v. Marshall, 564 U. S. ___ (2011). A “Stern claim” is a 

claim that is “core” under the statute but yet “prohibited from proceeding in that way as a constitutional matter.” Executive Benefits Ins. 

Agency v. Arkison, 573 U. S. ___, ___ (2014) (slip op., at 4). 
 

 

2 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

Opinion of ALITO, J. 

tered on the bankruptcy judge’s order except with the 

express consent of the parties,” Rule 7012(b). When this 

Rule was promulgated, no one was thinking about a Stern 

claim. But now, assuming that Rule 7012(b) represents a

permissible interpretation of §157, the question arises 

whether a Stern claim should be treated as a non-core or 

core claim for purposes of the bankruptcy rules. See Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___– 

___ (2014) (slip op., at 9–10) (holding that, for reasons of 

severability, a bankruptcy court should treat a Stern claim 

as a non-core claim).

There is no need to decide that question here. In this 

case, respondent forfeited any Stern objection by failing to 

present that argument properly in the courts below. Stern 

vindicates Article III, but that does not mean that Stern 

arguments are exempt from ordinary principles of appellate procedure. See B&B Hardware, Inc. v. Hargis Industries, Inc., ante, at 11. 
 

_________________ 

_________________ 

Cite as: 575 U. S. ____ (2015) 1 

ROBERTS, C. J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 13–935 

WELLNESS INTERNATIONAL NETWORK, LIMITED, 

ET AL, PETITIONERS v. RICHARD SHARIF 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SEVENTH CIRCUIT 

[May 26, 2015] 

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA 

joins, and with whom JUSTICE THOMAS joins as to Part I, 

dissenting. 

The Bankruptcy Court in this case granted judgment 

to Wellness on its claim that Sharif ’s bankruptcy estate

contained assets he purportedly held in a trust. Provided 

that no third party asserted a substantial adverse claim to

those assets, the Bankruptcy Court’s adjudication “stems

from the bankruptcy itself ” rather than from “the stuff of 

the traditional actions at common law tried by the courts

at Westminster in 1789.” Stern v. Marshall, 564 U. S. ___, 

___ (2011) (slip op., at 18, 34) (internal quotation marks 

omitted). Article III poses no barrier to such a decision. 

That is enough to resolve this case.

Unfortunately, the Court brushes aside this narrow

basis for decision and proceeds to the serious constitutional

question whether private parties may consent to an Article III violation. In my view, they cannot. By reserving 

the judicial power to judges with life tenure and salary

protection, Article III constitutes “an inseparable element

of the constitutional system of checks and balances”—a 

structural safeguard that must “be jealously guarded.” 

Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 

458 U. S. 50, 58, 60 (1982) (plurality opinion).

Today the Court lets down its guard. Despite our prece­
 

 

2 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

dent directing that “parties cannot by consent cure” an

Article III violation implicating the structural separation

of powers, Commodity Futures Trading Comm’n v. Schor, 

478 U. S. 833, 850–851 (1986), the majority authorizes

litigants to do just that. The Court justifies its decision 

largely on pragmatic grounds. I would not yield so fully to

functionalism. The Framers adopted the formal protections of Article III for good reasons, and “the fact that a 

given law or procedure is efficient, convenient, and useful 

in facilitating functions of government, standing alone,

will not save it if it is contrary to the Constitution.” INS v. 

Chadha, 462 U. S. 919, 944 (1983). 

The impact of today’s decision may seem limited, but the

Court’s acceptance of an Article III violation is not likely 

to go unnoticed. The next time Congress takes judicial

power from Article III courts, the encroachment may not

be so modest—and we will no longer hold the high ground 

of principle. The majority’s acquiescence in the erosion of 

our constitutional power sets a precedent that I fear we

will regret. I respectfully dissent. 

I 

The Court granted certiorari on two questions in this 

case. The first is whether the Bankruptcy Court’s entry of

final judgment on Wellness’s claim violated Article III

based on Stern. The second is whether an Article III 

violation of the kind recognized in Stern can be cured by 

consent. Because the first question can be resolved on

narrower grounds, I would answer it alone. 

A 

The Framers of the Constitution “lived among the ruins 

of a system of intermingled legislative and judicial powers.” Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 219 

(1995). Under British rule, the King “made Judges dependent on his Will alone, for the tenure of their offices, 
 

 

 

 

Cite as: 575 U. S. ____ (2015) 3 

ROBERTS, C. J., dissenting 

and the amount and payment of their salaries.” The 

Declaration of Independence ¶11. Between the Revolution 

and the Constitutional Convention, state legislatures

routinely interfered with judgments of the courts. This 

history created the “sense of a sharp necessity to separate 

the legislative from the judicial power.” Plaut, 514 U. S., 

at 221; see Perez v. Mortgage Bankers Assn., 575 U. S. ___, 

___–___ (2015) (THOMAS, J., concurring in judgment) (slip 

op., at 5–8). The result was Article III, which established 

a judiciary “truly distinct from both the legislature and

the executive.” The Federalist No. 78, p. 466 (C. Rossiter 

ed. 1961) (A. Hamilton).

Article III vests the “judicial Power of the United

States” in “one supreme Court, and in such inferior Courts

as the Congress may from time to time ordain and establish.” Art. III, §1. The judges of those courts are entitled 

to hold their offices “during good Behaviour” and to receive 

compensation “which shall not be diminished” during their 

tenure. Ibid. The judicial power extends “to all Cases, in

Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties” and to other enumerated matters. Art. III, §2. Taken together, these provisions define the constitutional birthright of Article III

judges: to “render dispositive judgments” in cases or controversies within the bounds of federal jurisdiction. Plaut, 

514 U. S., at 219 (internal quotation marks omitted).

With narrow exceptions, Congress may not confer power

to decide federal cases and controversies upon judges who

do not comply with the structural safeguards of Article III.

Those narrow exceptions permit Congress to establish

non-Article III courts to exercise general jurisdiction in 

the territories and the District of Columbia, to serve as 

military tribunals, and to adjudicate disputes over “public 

rights” such as veterans’ benefits. Northern Pipeline, 458 

U. S., at 64–70 (plurality opinion). 

Our precedents have also recognized an exception to the 
 

 

 

 

4 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

requirements of Article III for certain bankruptcy proceedings. When the Framers gathered to draft the Constitution, English statutes had long empowered nonjudicial 

bankruptcy “commissioners” to collect a debtor’s property,

resolve claims by creditors, order the distribution of assets

in the estate, and ultimately discharge the debts. See 2 

W. Blackstone, Commentaries *471–488. This historical 

practice, combined with Congress’s constitutional authority to enact bankruptcy laws, confirms that Congress may 

assign to non-Article III courts adjudications involving

“the restructuring of debtor-creditor relations, which is at 

the core of the federal bankruptcy power.” Northern Pipeline, 458 U. S., at 71 (plurality opinion).

Although Congress may assign some bankruptcy proceedings to non-Article III courts, there are limits on that 

power. In Northern Pipeline, the Court invalidated statutory provisions that permitted a bankruptcy court to enter 

final judgment on a creditor’s state law claim for breach of 

contract. Because that claim arose not from the bankruptcy 

but from independent common law sources, a majority

of the Court determined that Article III required an adjudicator with life tenure and salary protection. See id., at 

84; id., at 90–91 (Rehnquist, J., concurring in judgment).

Congress responded to Northern Pipeline by allowing

bankruptcy courts to render final judgments only in “core” 

bankruptcy proceedings. 28 U. S. C. §157(b). Those 

judgments may be appealed to district courts and reviewed under deferential standards. §158(a). In non-core 

proceedings, bankruptcy judges may submit proposed 

findings of fact and conclusions of law, which the district

court must review de novo before entering final judgment.

§157(c)(1).

In Stern, we faced the question whether a bankruptcy

court could enter final judgment on an action defined by

Congress as a “core” proceeding—an estate’s counterclaim

against a creditor based on state tort law. §157(b)(2)(C). 
 

 

 

Cite as: 575 U. S. ____ (2015) 5 

ROBERTS, C. J., dissenting 

We said no. Because the tort claim neither “stem[med]

from the bankruptcy itself ” nor would “necessarily be

resolved in the claims allowance process,” it fell outside 

the recognized exceptions to Article III. 564 U. S., at ___ 

(slip op., at 34). Like the contract claim in Northern Pipeline, the tort claim in Stern involved “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789.” Id., at ___ (slip op., at 18) (quoting 

Northern Pipeline, 458 U. S., at 90 (Rehnquist, J., concurring in judgment)). Congress had no power under the

Constitution to assign the resolution of such a claim to a

judge who lacked the structural protections of Article III. 

B 

The question here is whether the claim Wellness submitted to the Bankruptcy Court is a “Stern claim” that 

requires final adjudication by an Article III court. See 

Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, 

___–___ (2014) (slip op., at 8–9) (assuming without deciding that a fraudulent conveyance action is a “Stern claim”).

As the Court recounts, Wellness alleged that Sharif had 

concealed about $5 million of assets by claiming that they

were owned by a trust. Wellness sought a declaratory 

judgment that the trust was in fact Sharif ’s alter ego and

that its assets should accordingly be part of his bankruptcy 

estate. The Bankruptcy Court granted final judgment 

(based on Sharif ’s default) to Wellness, declaring that the

trust assets were part of Sharif ’s estate because he had 

treated them as his own property. Ante, at 5–6. 

In my view, Article III likely poses no barrier to the

Bankruptcy Court’s resolution of Wellness’s claim. At its 

most basic level, bankruptcy is “an adjudication of interests claimed in a res.” Katchen v. Landy, 382 U. S. 323, 

329 (1966) (internal quotation marks omitted). Wellness 

asked the Bankruptcy Court to declare that assets held by

Sharif are part of that res. Defining what constitutes the 
 

 

6 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

estate is the necessary starting point of every bankruptcy;

a court cannot divide up the estate without first knowing

what’s in it. See 11 U. S. C. §541(a). As the Solicitor 

General explains, “Identifying the property of the estate is

therefore inescapably central to the restructuring of the

debtor-creditor relationship.” Brief for United States as 

Amicus Curiae 14. 

Identifying property that constitutes the estate has long

been a central feature of bankruptcy adjudication. English bankruptcy commissioners had authority not only to

collect property in the debtor’s possession, but also to

“cause any house or tenement of the bankrupt to be broken open,” in order to uncover and seize property the

debtor had concealed. 2 W. Blackstone, Commentaries 

*485. America’s first bankruptcy statute, enacted by

Congress in 1800, similarly gave commissioners “power to 

take into their possession, all the estate, real and personal,

of every nature and description to which the [debtor] may 

be entitled, either in law or equity, in any manner whatsoever.” §5, 2 Stat. 23. That is peculiarly a bankruptcy 

power.

The Bankruptcy Act of 1898 provides further support for 

Wellness’s position. Under that Act, bankruptcy referees

had authority to exercise “summary” jurisdiction over

certain claims, while other claims could only be adjudicated in “plenary” proceedings before an Article III district 

court. See Arkison, 573 U. S., at ___–___ (slip op., at 4–5). 

This Court interpreted the 1898 Act to permit bankruptcy

referees to exercise summary jurisdiction to determine 

whether property in the actual or constructive possession 

of a debtor should come within the estate, at least when no 

third party asserted more than a “merely colorable” claim

to the property. Mueller v. Nugent, 184 U. S. 1, 15 (1902). 

In the legal parlance of the times, a “merely colorable”

claim was one that existed “in appearance only, and not in

reality.” Black’s Law Dictionary 223 (1891). So a bank­
 

Cite as: 575 U. S. ____ (2015) 7 

ROBERTS, C. J., dissenting 

ruptcy referee could exercise summary jurisdiction over

property in the debtor’s possession as long as no third 

party asserted a “substantial adverse” claim. TaubelScott-Kitzmiller Co. v. Fox, 264 U. S. 426, 431–433 (1924).

Here, Sharif does not contest that he held legal title to 

the assets in the trust. Assuming that no third party

asserted a substantial adverse claim to those assets—an 

inquiry for the Bankruptcy Court on remand—Wellness’s 

alter ego claim fits comfortably into the category of cases

that bankruptcy referees could have decided by themselves under the 1898 Act.

 In Mueller, for example, this Court held that a bankruptcy referee could exercise summary jurisdiction over

property in the possession of a third party acting as the 

debtor’s agent. 184 U. S., at 14–17; see Black’s Law Dictionary 302 (10th ed. 2014) (example of a merely “colorable” claim is “one made by a person holding property as an

agent or bailee of the bankrupt”). Similarly, this Court 

held that a bankruptcy referee could exercise summary

jurisdiction over a creditor’s claim that the debtor had 

concealed assets under the veil of a corporate entity that

was “nothing but a sham and a cloak.” Sampsell v. Imperial Paper & Color Corp., 313 U. S. 215, 216–217 (1941) 

(internal quotation marks omitted), rev’g 114 F. 2d 49, 52

(CA9 1940) (describing creditor’s claim that corporation 

was debtor’s “alter ego”). As the Court explained in 

Sampsell, the “legal existence of the affiliated corporation” 

did not automatically require a plenary proceeding, because “[m]ere legal paraphernalia will not suffice to transform into a substantial adverse claimant a corporation

whose affairs are so closely assimilated to the affairs of the 

dominant stockholder that in substance it is little more 

than his corporate pocket.” 313 U. S., at 218. Just as the 

bankruptcy referee in that case had authority to decide

whether assets allegedly concealed behind the corporate 

veil belonged to the bankruptcy estate, the Bankruptcy 
 

 

 

 

8 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

Court here had authority to decide whether the assets 

allegedly concealed in the trust belonged to Sharif ’s 

estate. 

Sharif contends that Wellness’s alter ego claim is more

like an allegation of a fraudulent conveyance, which this 

Court has implied must be adjudicated by an Article III 

court. See Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 

56 (1989); Arkison, 573 U. S., at ___–___ (slip op., at 8–9). 

Although both actions aim to remedy a debtor’s deception, 

they differ in a critical respect. A fraudulent conveyance

claim seeks assets in the hands of a third party, while an

alter ego claim targets only the debtor’s “second self.” 

Webster’s New International Dictionary 76 (2d ed. 1954).

That distinction is significant given bankruptcy’s historic 

domain over property within the actual or constructive

“possession [of] the bankrupt at the time of the filing of 

the petition.” Thompson v. Magnolia Petroleum Co., 309 

U. S. 478, 481 (1940). Through a fraudulent conveyance, a

dishonest debtor relinquishes possession of assets before 

filing for bankruptcy. Reclaiming those assets for the

estate requires depriving third parties of property within

their otherwise lawful possession and control, an action 

that “quintessentially” required a suit at common law. 

Granfinanciera, 492 U. S., at 56. By contrast, a debtor’s 

possession of property provided “an adequate basis” for a

bankruptcy referee to adjudicate a dispute over title in a

summary proceeding. Thompson, 309 U. S., at 482; see 

Mueller, 184 U. S., at 15–16 (distinguishing claim to property in possession of debtor’s agent from fraudulent conveyance claim in determining that bankruptcy referee

could exercise summary jurisdiction). 

In sum, unlike the fraudulent conveyance claim in 

Granfinanciera, Wellness’s alter ego claim alleges that

assets within Sharif ’s actual or constructive possession

belong to his estate. And unlike the breach of contract 

and tort claims at issue in Northern Pipeline and Stern, 
 

Cite as: 575 U. S. ____ (2015) 9 

ROBERTS, C. J., dissenting 

Wellness’s claim stems not from any independent source of 

law but “from the bankruptcy itself.” Stern, 564 U. S., at 

___ (slip op., at 34). Provided that no third party asserted

a substantial adverse claim to the trust assets, Wellness’s 

claim therefore falls within the narrow historical exception that permits a non-Article III adjudicator in certain 

bankruptcy proceedings. I would reverse the contrary

holding by the Court of Appeals and end our inquiry there, 

rather than deciding a broader question that may not be

necessary to the disposition of this case. 

II 

The Court “expresses no view” on whether Wellness’s

claim was a Stern claim. Ante, at 8, n. 7. Instead, the 

Court concludes that the Bankruptcy Court had constitutional authority to enter final judgment on Wellness’s 

claim either way. The majority rests its decision on Sharif ’s purported consent to the Bankruptcy Court’s adjudication. But Sharif has no authority to compromise the 

structural separation of powers or agree to an exercise of 

judicial power outside Article III. His consent therefore 

cannot cure a constitutional violation. 

A 

“[I]f there is a principle in our Constitution . . . more 

sacred than another,” James Madison said on the floor of 

the First Congress, “it is that which separates the Legislative, Executive, and Judicial powers.” 1 Annals of Cong. 

581 (1789). A strong word, “sacred.” Madison was the 

principal drafter of the Constitution, and he knew what he

was talking about. By diffusing federal powers among 

three different branches, and by protecting each branch 

against incursions from the others, the Framers devised a

structure of government that promotes both liberty and 

accountability. See Bond v. United States, 564 U. S. ___, 

___–___ (2011) (slip op., at 10–11); Free Enterprise Fund v. 
 

 

 

 

10 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

Public Company Accounting Oversight Bd., 561 U. S. 

477, 497–501 (2010) (PCAOB); Youngstown Sheet & Tube 

Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., 

concurring).

Preserving the separation of powers is one of this 

Court’s most weighty responsibilities. In performing that

duty, we have not hesitated to enforce the Constitution’s

mandate “that one branch of the Government may not 

intrude upon the central prerogatives of another.” Loving 

v. United States, 517 U. S. 748, 757 (1996). We have 

accordingly invalidated executive actions that encroach

upon the power of the Legislature, see NLRB v. Noel 

Canning, 573 U. S. ___ (2014); Youngstown, 343 U. S. 579; 

legislative actions that invade the province of the Executive, see PCAOB, 561 U. S. 477; Bowsher v. Synar, 478 

U. S. 714 (1986); Chadha, 462 U. S. 919; Myers v. United 

States, 272 U. S. 52 (1926); and actions by either branch

that trench upon the territory of the Judiciary, see Stern, 

564 U. S. ___; Plaut, 514 U. S. 211; United States v. Will, 

449 U. S. 200 (1980); United States v. Klein, 13 Wall. 128 

(1872); Hayburn’s Case, 2 Dall. 409 (1792).

In these and other cases, we have emphasized that the

values of liberty and accountability protected by the separation of powers belong not to any branch of the Government but to the Nation as a whole. See Bowsher, 478 

U. S., at 722. A branch’s consent to a diminution of its 

constitutional powers therefore does not mitigate the 

harm or cure the wrong. “Liberty is always at stake when

one or more of the branches seek to transgress the separation of powers.” Clinton v. City of New York, 524 U. S. 

417, 450 (1998) (KENNEDY, J., concurring). When the 

Executive and the Legislature agreed to bypass the Article 

I, §7, requirements of bicameralism and presentment by

creating a Presidential line-item veto—a very pragmatic 

proposal—the Court held that the arrangement violated

the Constitution notwithstanding the voluntary participa­
 

 

Cite as: 575 U. S. ____ (2015) 11 

ROBERTS, C. J., dissenting 

tion of both branches. Id., at 421 (majority opinion). 

Likewise, the Court struck down a one-House “legislative

veto” that violated Article I, §7, even though Presidents 

and Congresses had agreed to include similar provisions in

hundreds of laws for more than 50 years. Chadha, 462 

U. S., at 944–945. 

In neither of these cases did the branches’ willing embrace of a separation of powers violation weaken the

Court’s scrutiny. To the contrary, the branches’ “enthusiasm” for the offending arrangements “‘sharpened rather

than blunted’ our review.” Noel Canning, 573 U. S., at ___ 

(SCALIA, J., concurring in judgment) (slip op., at 4) (quoting Chadha, 462 U. S, at 944). In short, because the 

structural provisions of the Constitution protect liberty

and not just government entities, “the separation of powers does not depend on . . . whether ‘the encroached-upon 

branch approves the encroachment.’” PCAOB, 561 U. S., 

at 497 (quoting New York v. United States, 505 U. S. 144, 

182 (1992)). 

B 

If a branch of the Federal Government may not consent 

to a violation of the separation of powers, surely a private

litigant may not do so. Just as a branch of Government 

may not consent away the individual liberty interest 

protected by the separation of powers, so too an individual 

may not consent away the institutional interest protected 

by the separation of powers. To be sure, a private litigant

may consensually relinquish individual constitutional 

rights. A federal criminal defendant, for example, may

knowingly and voluntarily waive his Sixth Amendment 

right to a jury trial by pleading guilty to a charged offense.

See Brady v. United States, 397 U. S. 742, 748 (1970). But 

that same defendant may not agree to stand trial on federal charges before a state court, a foreign court, or a moot 

court, because those courts have no constitutional author­
 

 

 

12 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

ity to exercise judicial power over his case, and he has no 

power to confer it. A “lack of federal jurisdiction cannot be

waived or be overcome by an agreement of the parties.” 

Mitchell v. Maurer, 293 U. S. 237, 244 (1934). 

As the majority recognizes, the Court’s most extensive 

discussion of litigant consent in a separation of powers 

case occurred in Commodity Futures Trading Comm’n v. 

Schor, 478 U. S. 833 (1986). There the Court held that 

Article III confers both a “personal right” that can be 

waived through consent and a structural component that

“safeguards the role of the Judicial Branch in our tripartite system.” Id., at 848, 850. “To the extent that this 

structural principle is implicated in a given case, the 

parties cannot by consent cure the constitutional difficulty

for the same reason that the parties by consent cannot

confer on federal courts subject-matter jurisdiction beyond

the limitations imposed by Article III.” Id., at 850–851. 

Thus, when “Article III limitations are at issue, notions of 

consent and waiver cannot be dispositive because the

limitations serve institutional interests that the parties

cannot be expected to protect.” Id., at 851. 

Schor’s holding that a private litigant can consent to an

Article III violation that affects only his “personal right” 

has been vigorously contested. See id., at 867 (Brennan, 

J., dissenting) (“Because the individual and structural

interests served by Article III are coextensive, I do not 

believe that a litigant may ever waive his right to an 

Article III tribunal where one is constitutionally required”); Granfinanciera, 492 U. S., at 70 (SCALIA, J., 

concurring in part and concurring in judgment). But 

whatever the merits of that position, nobody disputes that 

Schor forbids a litigant from consenting to a constitutional

violation when the structural component of Article III “is 

implicated.” 478 U. S., at 850–851. Thus, the key inquiry 

in this case—as the majority puts it—is “whether allowing

bankruptcy courts to decide Stern claims by consent would 
 

 

 

Cite as: 575 U. S. ____ (2015) 13 

ROBERTS, C. J., dissenting 

‘impermissibly threaten the institutional integrity of the 

Judicial Branch.’” Ante, at 12 (quoting Schor, 478 U. S., 

at 851; alteration omitted).

One need not search far to find the answer. In Stern, 

this Court applied the analysis from Schor to bankruptcy

courts and concluded that they lack Article III authority to

enter final judgments on matters now known as Stern 

claims. The Court noted that bankruptcy courts, unlike 

the administrative agency in Schor, were endowed by

Congress with “substantive jurisdiction reaching any area

of the corpus juris,” power to render final judgments enforceable without any action by Article III courts, and

authority to adjudicate counterclaims entirely independent of the bankruptcy itself. 564 U. S., at ___–___ (slip op., 

at 25–29). The Court concluded that allowing Congress to 

bestow such authority on non-Article III courts would

“compromise the integrity of the system of separated

powers and the role of the Judiciary in that system.” Id., 

at ___ (slip op., at 38). If there was any room for doubt 

about the basis for its holding, the Court dispelled it by 

asking a question: “Is there really a threat to the separation of powers where Congress has conferred the judicial 

power outside Article III only over certain counterclaims 

in bankruptcy?” Id., at ___ (slip op., at 37). “The short but 

emphatic answer is yes.” Ibid. 

In other words, allowing bankruptcy courts to decide 

Stern claims by consent would “impermissibly threaten

the institutional integrity of the Judicial Branch.” Ante, at 

12 (internal quotation marks and alteration omitted). It is 

little wonder that the Court of Appeals felt itself bound by 

Stern and Schor to hold that Sharif ’s consent could not 

cure the Stern violation. 727 F. 3d 751, 771 (CA7 2013).

Other Courts of Appeals have adopted the same reading.

See In re BP RE, L. P., 735 F. 3d 279, 287 (CA5 2013); 

Waldman v. Stone, 698 F. 3d 910, 917–918 (CA6 2012).

The majority attempts to avoid this conclusion through 
 

 

 

 

14 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

an imaginative reconstruction of Stern. As the majority 

sees it, Stern “turned on the fact that the litigant ‘did not

truly consent to’ resolution of the claim” against him in

the Bankruptcy Court. Ante, at 15 (quoting 564 U. S., at

___ (slip op., at 27)). That is not a proper reading of the 

decision. The constitutional analysis in Stern, spanning

22 pages, contained exactly one affirmative reference to

the lack of consent. See ibid. That reference came amid a 

long list of factors distinguishing the proceeding in Stern 

from the proceedings in Schor and other “public rights” 

cases. 564 U. S., at ___–___ (slip op., at 27–29). Stern’s 

subsequent sentences made clear that the notions of consent relied upon by the Court in Schor did not apply in

bankruptcy because “creditors lack an alternative forum to 

the bankruptcy court in which to pursue their claims.” 

564 U. S., at ___ (slip op., at 28) (quoting Granfinanciera, 

492 U. S., at 59, n. 14). Put simply, the litigant in Stern 

did not consent because he could not consent given the 

nature of bankruptcy.

There was an opinion in Stern that turned heavily on 

consent: the dissent. 564 U. S., at ___–___ (opinion of 

BREYER, J.) (slip op., at 12–14). The Stern majority responded to the dissent with a counterfactual: Even if 

consent were relevant to the analysis, that factor would 

not change the result because the litigant did not truly 

consent. Id., at ___–___ (slip op., at 28–29). Moreover, 

Stern held that “it does not matter who” authorizes a 

bankruptcy judge to render final judgments on Stern 

claims, because the “constitutional bar remains.” Id., at 

___ (slip op., at 36). That holding is incompatible with the 

majority’s conclusion today that two litigants can authorize a bankruptcy judge to render final judgments on Stern 

claims, despite the constitutional bar that remains. 

The majority also relies heavily on the supervision and

control that Article III courts exercise over bankruptcy 

courts. Ante, at 12–15. As the majority notes, court of 
 

Cite as: 575 U. S. ____ (2015) 15 

ROBERTS, C. J., dissenting 

appeals judges appoint bankruptcy judges, and bankruptcy

judges receive cases only on referral from district courts 

(although every district court in the country has adopted a

standing rule automatically referring all bankruptcy 

filings to bankruptcy judges, see 1 Collier on Bankruptcy 

¶3.02[1], p. 3–26 (16th ed. 2014)). The problem is that 

Congress has also given bankruptcy courts authority to 

enter final judgments subject only to deferential appellate 

review, and Article III precludes those judgments when 

they involve Stern claims. The fact that Article III judges

played a role in the Article III violation does not remedy 

the constitutional harm. We have already explained why. 

It is a fundamental principle that no branch of government can delegate its constitutional functions to an actor

who lacks authority to exercise those functions. See 

Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 

472 (2001); Carter v. Carter Coal Co., 298 U. S. 238, 311 

(1936). Such delegations threaten liberty and thwart 

accountability by empowering entities that lack the structural protections the Framers carefully devised. See 

Department of Transportation v. Association of American 

Railroads, 575 U. S. ___, ___–___ (2015) (ALITO, J., concurring) (slip op., at 6–7); id., at ___–___ (THOMAS, J., 

concurring in judgment) (slip op., at 2–3); Mistretta v. 

United States, 488 U. S. 361, 417–422 (1989) (SCALIA, J., 

dissenting). Article III judges have no constitutional 

authority to delegate the judicial power—the power to

“render dispositive judgments”—to non-Article III judges,

no matter how closely they control or supervise their

work. Plaut, 514 U. S., at 219 (internal quotation marks 

omitted).

In any event, the majority’s arguments about supervision and control are not new. They were considered and

rejected in Stern. See 564 U. S., at ___ (slip op., at 36) (“it

does not matter who appointed the bankruptcy judge or

authorized the judge to render final judgments”); see also 
 

 

16 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

Northern Pipeline, 458 U. S., at 84–86 (plurality opinion); 

id., at 91 (Rehnquist, J., concurring in judgment). The 

majority points to no differences between the bankruptcy 

proceeding in Stern and the bankruptcy proceeding here,

except for Sharif ’s purported consent. The majority thus

treats consent as “dispositive” in curing the structural 

separation of powers violation—precisely what Schor said 

consent could not do. 478 U. S., at 851. 

C 

Eager to change the subject from Stern, the majority

devotes considerable attention to defending the authority 

of magistrate judges, who may conduct certain proceedings with the consent of the parties under 28 U. S. C. 

§636. No one here challenges the constitutionality of 

magistrate judges or disputes that they, like bankruptcy 

judges, may issue reports and recommendations that are

reviewed de novo by Article III judges. The cases about 

magistrate judges cited by the majority therefore have 

little bearing on this case, because none of them involved a

constitutional challenge to the entry of final judgment by a 

non-Article III actor. See Roell v. Withrow, 538 U. S. 580 

(2003) (statutory challenge only); Peretz v. United States, 

501 U. S. 923 (1991) (challenge to a magistrate judge’s 

conduct of voir dire in a felony trial); Gomez v. United 

States, 490 U. S. 858 (1989) (same). 

The majority also points to 19th-century cases in which

courts referred disputes to non-Article III referees, masters, or arbitrators. Ante, at 8. In those cases, however, it 

was the Article III court that ultimately entered final

judgment. E.g., Thornton v. Carson, 7 Cranch 596, 600 

(1813) (“the Court was right in entering the judgment for 

the sums awarded”). Article III courts do refer matters to 

non-Article III actors for assistance from time to time. 

This Court does so regularly in original jurisdiction cases. 

See, e.g., Kansas v. Nebraska, 574 U. S. ___, ___ (2015) 
 

 

 

 

Cite as: 575 U. S. ____ (2015) 17 

ROBERTS, C. J., dissenting 

(slip op., at 1). But under the Constitution, the “ultimate 

responsibility for deciding” the case must remain with the 

Article III court. Id., at ___ (slip op., at 6) (quoting Colorado v. New Mexico, 467 U. S. 310, 317 (1984)).

The concurrence’s comparison of bankruptcy judges to

arbitrators is similarly inapt. Ante, at 1 (opinion of ALITO, 

J.). Arbitration is “a matter of contract” by which parties

agree to resolve their disputes in a private forum. Rent-ACenter, West, Inc. v. Jackson, 561 U. S. 63, 67 (2010).

Such an arrangement does not implicate Article III any 

more than does an agreement between two business partners to submit a difference of opinion to a mutually trusted 

friend. Arbitration agreements, like most private contracts, can be enforced in court. And Congress, pursuant 

to its Commerce Clause power, has authorized district 

courts to enter judgments enforcing arbitration awards

under certain circumstances. See 9 U. S. C. §9. But this 

ordinary scheme of contract enforcement creates no constitutional concern. As the concurrence acknowledges, only

Article III judges—not arbitrators—may enter final judgments enforcing arbitration awards. Ante, at 1. 

The discussion of magistrate judges, masters, arbitrators, and the like fits with the majority’s focus on the 

supposedly dire consequences that would follow a decision

that parties cannot consent to the final adjudication of 

Stern claims in bankruptcy courts. Of course, it “goes

without saying” that practical considerations of efficiency 

and convenience cannot trump the structural protections

of the Constitution. Stern, 564 U. S., at ___ (slip op., at 

36); see Perez, 575 U. S., at ___ (THOMAS, J., concurring in 

judgment) (slip op., at 20) (“Even in the face of perceived 

necessity, the Constitution protects us from ourselves.”).

And I find it hard to believe that the Framers in Philadelphia, who took great care to ensure that the Judiciary was 

“truly distinct” from the Legislature, would have been

comforted to know that Congress’s incursion here could 
 

 

18 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

“only be termed de minimis.” Ante, at 13 (quoting Schor, 

478 U. S., at 856).

In any event, the majority overstates the consequences

of enforcing the requirements of Article III in this case. As 

explained in Part I, Wellness’s claim may not be a Stern 

claim, in which case the bankruptcy statute would apply 

precisely as Congress wrote it. Even if Wellness’s claim 

were a Stern claim, the District Court would not need to 

start from scratch. As this Court held in Arkison, the 

District Court could treat the bankruptcy judge’s decision 

as a recommendation and enter judgment after performing 

de novo review. 573 U. S., at ___ (slip op., at 4). 

In Stern, the Court cautioned that Congress “may no

more lawfully chip away at the authority of the Judicial

Branch than it may eliminate it entirely.” 564 U. S., at 

___ (slip op., at 37). The majority sees no reason to fret, 

however, so long as two private parties consent. Ante, at 

14, n. 10. But such parties are unlikely to carefully weigh

the long-term structural independence of the Article III 

judiciary against their own short-term priorities. Perhaps

the majority’s acquiescence in this diminution of constitutional authority will escape notice. Far more likely, however, it will amount to the kind of “blueprint for extensive 

expansion of the legislative power” that we have resisted

in the past. PCAOB, 561 U. S., at 500 (quoting Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 277 (1991)).

The encroachment at issue here may seem benign

enough. Bankruptcy judges are devoted professionals who 

strive to be fair to all sides, and litigants can be trusted to

protect their own interests when deciding whether to 

consent. But the fact remains that Congress controls the

salary and tenure of bankruptcy judges, and the Legislature’s present solicitude provides no guarantee of its future restraint. See Glidden Co. v. Zdanok, 370 U. S. 530, 

534 (1962) (plurality opinion). Once Congress knows that 
 

Cite as: 575 U. S. ____ (2015) 19 

ROBERTS, C. J., dissenting 

it can assign federal claims to judges outside Article III 

with the parties’ consent, nothing would limit its exercise 

of that power to bankruptcy. Congress may consider it 

advantageous to allow claims to be heard before judges 

subject to greater legislative control in any number of

areas of federal concern. As for the requirement of consent, Congress can find ways to “encourage” consent, say 

by requiring it as a condition of federal benefits. That has 

worked to expand Congress’s power before. See, e.g., 

College Savings Bank v. Florida Prepaid Postsecondary 

Ed. Expense Bd., 527 U. S. 666, 686 (1999) (“Congress

may, in the exercise of its spending power, condition its

grant of funds to the States upon their taking certain

actions that Congress could not require them to take”); 

South Dakota v. Dole, 483 U. S. 203, 207 (1987) (same).

Legislative designs of this kind would not displace the

Article III judiciary overnight. But steady erosion of

Article III authority, no less than a brazen usurpation, 

violates the constitutional separation of powers. In a 

Federal Government of limited powers, one branch’s loss is

another branch’s gain, see PCAOB, 561 U. S., at 500, so 

whether a branch aims to “arrogate power to itself ” or to

“impair another in the performance of its constitutional 

duties,” the Constitution forbids the transgression all the 

same. Loving, 517 U. S., at 757. As we have cautioned, 

“[s]light encroachments create new boundaries from which

legions of power can seek new territory to capture.” Stern, 

564 U. S., at ___ (slip op., at 38) (internal quotation marks 

omitted).

The Framers understood this danger. They warned that

the Legislature would inevitably seek to draw greater 

power into its “impetuous vortex,” The Federalist No. 48, 

at 309 (J. Madison), and that “power over a man’s subsistence amounts to a power over his will,” id., No. 79, at 472 

(A. Hamilton) (emphasis deleted). In response, the Framers adopted the structural protections of Article III, “es­
 

 

 

 

20 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

ROBERTS, C. J., dissenting 

tablishing high walls and clear distinctions because low 

walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Plaut, 514 U. S., at 

239. As this Court once put it, invoking Frost, “Good 

fences make good neighbors.” Id., at 240. 

Ultimately, however, the structural protections of Article III are only as strong as this Court’s will to enforce

them. In Madison’s words, the “great security against a 

gradual concentration of the several powers in the same 

department consists in giving to those who administer

each department the necessary constitutional means and 

personal motives to resist encroachments of the others.”

The Federalist No. 51, at 321–322 (J. Madison). The 

Court today declines to resist encroachment by the Legislature. Instead it holds that a single federal judge, for 

reasons adequate to him, may assign away our hard-won

constitutional birthright so long as two private parties 

agree. I hope I will be wrong about the consequences of

this decision for the independence of the Judicial Branch.

But for now, another literary passage comes to mind: It 

profits the Court nothing to give its soul for the whole

world . . . but to avoid Stern claims? 

I respectfully dissent. 
_________________ 

_________________ 

Cite as: 575 U. S. ____ (2015) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 13–935 

WELLNESS INTERNATIONAL NETWORK, LIMITED, 

ET AL, PETITIONERS v. RICHARD SHARIF 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SEVENTH CIRCUIT 

[May 26, 2015] 

JUSTICE THOMAS, dissenting. 

 Like THE CHIEF JUSTICE, I would have remanded this 

case to the lower courts to determine, under the proper

standard, whether Wellness’ alter-ego claim is a Stern 

claim. See Stern v. Marshall, 564 U. S. ___ (2011). I write 

separately to highlight a few questions touching on the 

consent issue that merit closer attention than either the 

Court or THE CHIEF JUSTICE gives them. 

I agree with THE CHIEF JUSTICE that individuals cannot 

consent to violations of the Constitution, but this principle 

has nothing to do with whose interest the violated provision protects. Anytime the Federal Government acts in a

manner inconsistent with the separation of powers, it acts

in excess of its constitutional authority. That authority is

carefully defined by the Constitution, and, except through

Article V’s amendment process, that document does not 

permit individuals to bestow additional power upon the 

Government. 

The majority today authorizes non-Article III courts to

adjudicate, with consent, claims that we have held to 

require an exercise of the judicial power based on its assessment that few “structural interests” are implicated by 

consent to the adjudication of Stern claims. See ante, at 7, 

12. That reasoning is flawed. It matters not whether we 

think the particular violation threatens the structure of 
 

2 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

THOMAS, J., dissenting 

our Government. Our duty is to enforce the Constitution 

as written, not as revised by private consent, innocuous or

otherwise. Worse, amidst the tempest over whether

“structural interests” are implicated when an individual

consents to adjudication of Stern claims by a non-Article 

III court, both the majority and THE CHIEF JUSTICE fail to 

grapple with the antecedent question: whether a violation

of the Constitution has actually occurred. That question is 

a difficult one, and the majority makes a grave mistake by 

skipping over it in its quest to answer the question whether 

consent can authorize a constitutional violation. Because 

I would resolve this case on narrower grounds, I need not 

decide that question here. I nevertheless write separately

to highlight the complexity of the issues the majority

simply brushes past. 

I 

A 

“The principle, that [the Federal Government] can

exercise only the powers granted to it, . . . is now universally admitted.” McCulloch v. Maryland, 4 Wheat. 316, 

405 (1819). A corollary to this principle is that each

branch of the Government is limited to the exercise of 

those powers granted to it. Every violation of the separation of powers thus involves an exercise of power in excess 

of the Constitution. And because the only authorities

capable of granting power are the Constitution itself, and 

the people acting through the amendment process, individual consent cannot authorize the Government to exceed 

constitutional boundaries. 

This does not mean, however, that consent is invariably 

irrelevant to the constitutional inquiry. Although it may

not authorize a constitutional violation, consent may 

prevent one from occurring in the first place. This concept

is perhaps best understood with the example on which the 

majority and THE CHIEF JUSTICE both rely: the right to a 
 

 

Cite as: 575 U. S. ____ (2015) 3 

THOMAS, J., dissenting 

jury trial. Ante, at 9 (majority opinion); ante, at 11 

(ROBERTS, C. J., dissenting).1 Although the Government

incurably contravenes the Constitution when it acts in 

violation of the jury trial right, our precedents permit the 

Government to convict a criminal defendant without a 

jury trial when he waives that right. See Brady v. United 

States, 397 U. S. 742, 748 (1970). The defendant’s waiver 

is thus a form of consent that lifts a limitation on government action by satisfying its terms—that is, the right is 

exercised and honored, not disregarded. See Patton v. 

United States, 281 U. S. 276, 296–298 (1930), abrogated on

other grounds by Williams v. Florida, 399 U. S. 78 (1970).

Provided the Government otherwise acts within its powers, there is no constitutional violation. 

B 

Consent to the adjudication of Stern claims by bankruptcy courts is a far more complex matter than waiver of 

a jury trial. Two potential violations of the separation of 

powers occur whenever bankruptcy courts adjudicate 

Stern claims. First, the bankruptcy courts purport to

exercise power that the Constitution vests exclusively in

the judiciary, even though they are not Article III courts

because bankruptcy judges do not enjoy the tenure and 

salary protections required by Article III. See Art. III, §1. 

Second, the bankruptcy courts act pursuant to statutory 

authorization that is itself invalid. For even when acting 

pursuant to an enumerated power, such as the bankruptcy 

—————— 

1There is some dispute whether the guarantee of a jury trial protects 

an individual right, a structural right, or both, raising serious questions 

about how it should be treated under Commodity Futures Trading 

Comm’n v. Schor, 478 U. S. 833 (1986). My view, which does not turn

on such taxonomies, leaves no doubt: It is a “fundamental reservation 

of power in our constitutional structure,” Blakely v. Washington, 542 

U. S. 296, 306 (2004), meaning its violation may not be authorized by 

the consent of the individual. 
 

 

4 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

THOMAS, J., dissenting 

power, Congress exceeds its authority when it purports to

authorize a person or entity to perform a function that

requires the exercise of a power vested elsewhere by the 

Constitution. See Whitman v. American Trucking Assns., 

Inc., 531 U. S. 457, 472 (2001).

Rather than attempt to grapple with these problems, 

the majority seizes on some statements from Commodity 

Futures Trading Comm’n v. Schor, 478 U. S. 833 (1986), to 

resolve the difficult constitutional issue before us. See 

ante, at 9–12. But to the extent Schor suggests that individual consent could authorize non-Article III courts to 

exercise the judicial power, 478 U. S., at 850–851, it was 

wrongly decided and should be abandoned. Consent to 

adjudication by non-Article III judges may waive whatever 

individual right to impartial adjudication Article III implies, thereby lifting that affirmative barrier on Government action. But non-Article III courts must still act 

within the bounds of their constitutional authority. That 

is, they must act through a power properly delegated to 

the Federal Government and not vested by the Constitution in a different governmental actor. Because the judicial power is vested exclusively in Article III courts, nonArticle III courts may not exercise it. 

Schor’s justification for authorizing such a transgression 

was that it judged the “practical effect [the allocation 

would] have on the constitutionally assigned role of the 

federal judiciary” not to be too great. Id., at 851. But we 

“can[not] preserve a system of separation of powers on the

basis of such intuitive judgments regarding ‘practical 

effects.’” Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 

70 (1989) (SCALIA, J., concurring in part and concurring in 

judgment). Put more starkly, “[t]o uphold” a violation of 

the Constitution because one perceives “the infraction

assailed [a]s unimportant when compared with similar but 

more serious infractions which might be conceived . . . is 

not to interpret that instrument, but to disregard it.” 
 

 

Cite as: 575 U. S. ____ (2015) 5 

THOMAS, J., dissenting 

Patton, supra, at 292. Our Constitution is not a matter of 

convenience, to be invoked when we feel uncomfortable 

with some Government action and cast aside when we do 

not. See Perez v. Mortgage Bankers Assn., ante, at 5 

(THOMAS, J., concurring in judgment). 

II 

Properly understood, then, the answer to the consent 

question in this case depends on whether bankruptcy 

courts act within the bounds of their constitutional authority when they adjudicate Stern claims with the consent of the parties. In order to answer that question, we

must consider what form of governmental power that type

of adjudication requires and whether bankruptcy courts 

are qualified to exercise that power. Department of 

Transportation v. Association of American Railroads, ante, 

at 24 (THOMAS, J., concurring in judgment).

Many Government functions “may be performed by two

or more branches without either exceeding its enumerated 

powers under the Constitution.” Ante, at 4. Certain core 

functions, however, demand the exercise of legislative,

executive, or judicial power, and their allocation is controlled by the Vesting Clauses contained in the first three 

articles of the Constitution. Ibid. We have already held 

that adjudicating Stern claims, at least without consent of 

the parties, requires an exercise of the judicial power

vested exclusively in Article III courts. Stern, 564 U. S., at 

___–___ (slip op., at 28–29). The difficult question presented by this case, which the Court glosses over, is 

whether the parties’ consent somehow transforms the 

nature of the power exercised. 

A 

As the concepts were understood at the time of the 
 

6 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

THOMAS, J., dissenting 

founding, the legislative, executive, and judicial powers

played different roles in the resolution of cases and controversies. In this context, the judicial power is the power 

“to determine all differences according to the established

law”; the legislative power is the power to make that

“established law”; and the executive power is the power “to

back and support the sentence, and to give it due execution.” J. Locke, Second Treatise of Civil Government 

§§124–126, pp. 62–63 (J. Gough ed. 1947) (Locke); see also 

Wayman v. Southard, 10 Wheat. 1, 46 (1825). 

It should be immediately apparent that consent does not 

transform the adjudication of Stern claims into a function 

that requires the exercise of legislative or executive power. 

Parties by their consent do not transform the function of

adjudicating controversies into the functions of creating 

rules or enforcing judgments. 

The more difficult question is whether consent somehow 

eliminates the need for an exercise of the judicial power. 

Our precedents reveal that the resolution of certain cases 

or controversies requires the exercise of that power, but

that others “may or may not” be brought “within the cognizance of [Article III courts], as [Congress] deem[s] proper.” 

Murray’s Lessee v. Hoboken Land & Improvement Co., 18 

How. 272, 284 (1856). The distinction generally has to

do with the types of rights at issue. Disposition of private

rights to life, liberty, and property falls within the core of 

the judicial power, whereas disposition of public rights

does not. From that core of the judicial power, we have 

identified two narrow historical exceptions. Those exceptions, along with the treatment of cases or controversies

not falling within that core, provide useful guidance for 

understanding whether bankruptcy courts’ adjudication of 

Stern claims with the consent of the parties requires the 

exercise of Article III judicial power. 
Cite as: 575 U. S. ____ (2015) 7 

THOMAS, J., dissenting 

1 

Under our precedents, the three categories of cases that

may be adjudicated by Article III courts but that do not 

demand the exercise of the judicial power are those arising

in the territories, those arising in the Armed Forces, and

those involving public-rights disputes. Northern Pipeline 

Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 63–67 

(1982) (plurality opinion).

The first two represent unique historical exceptions that 

tell us little about the overall scope of the judicial power. 

From an early date, this Court has long upheld laws authorizing the adjudication of cases arising in the territories in non-Article III “territorial courts” on the ground

that such courts exercise power “conferred by Congress, in

the execution of those general powers which [Congress]

possesses over the territories of the United States.” American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828) 

(Canter).2 And the Court has upheld laws authorizing the 

—————— 

2Chief Justice Marshall’s explanation in Canter has come under attack on the ground that it fails to clarify the precise constitutional 

status of the power exercised by the territorial courts. Lawson, Territorial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, 892 

(1990) (criticizing it as “fatuous” dictum). On the one hand, some early 

evidence suggests that the courts were thought to be dealing primarily

with local matters that lie beyond federal judicial cognizance. Pfander, 

Article I Tribunals, Article III Courts, and the Judicial Power of the 

United States, 118 Harv. L. Rev. 643, 706–711 (2004). Yet Canter 

involved a controversy indisputably capable of adjudication by Article

III courts, because it both arose in admiralty and fell within the Supreme Court’s appellate jurisdiction. Pfander, supra, at 713–714, n. 

314. The best explanation for this apparent tension is that territorial

courts adjudicate matters that Congress may or may not assign to 

Article III courts, as it wishes. Nelson, Adjudication in the Political 

Branches, 107 Colum. L. Rev. 559, 575–576 (2007). To recognize 

Congress’ discretion requires no distortion of the meaning of judicial

power because Chief Justice Marshall’s reasoning has nothing to do

with the intrinsic qualities of the adjudication itself—e.g., whether it 

involves “the stuff of the traditional actions at common law tried by the 
 

8 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

THOMAS, J., dissenting 

adjudication of cases arising in the Armed Forces in nonArticle III courts-martial, inferring from a constellation of 

constitutional provisions that Congress has the power to 

provide for the adjudication of disputes among the Armed 

Forces it creates and that Article III extends only to civilian judicial power. Dynes v. Hoover, 20 How. 65, 78–79 

(1858). Whatever their historical validity, these precedents exempt cases arising in the territories and in the

land and naval forces from Article III because of other 

provisions of the Constitution, not because of the definition of judicial power in Article III itself. See Nelson, 

Adjudication in the Political Branches, 107 Colum. L. Rev. 

559, 576 (2007) (noting that both exceptions enjoy “special

textual rationales that d[o] not spill over into other 

areas”).

The third category consists of so-called “public rights” 

cases. Unlike the other two categories, which reflect

carve-outs from the core of the judicial power, this category describes cases outside of that core and therefore has 

more to tell us about the scope of the judicial power. 

The distinction between disputes involving “public

rights” and those involving “private rights” is longstanding, but the contours of the “public rights” doctrine have 

been the source of much confusion and controversy. See 

generally Granfinanciera, 492 U. S., at 66–70 (opinion of 

SCALIA, J.) (tracing the evolution of the doctrine). Our 

cases attribute the doctrine to this Court’s mid-19th century decision, Murray’s Lessee, supra. In that case, the 

Court observed that there are certain cases addressing

“public rights, which may be presented in such form that 

the judicial power is capable of acting on them, and which

are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the 

—————— 

courts of Westminster in 1789,” Stern v. Marshall, 564 U. S. ___, ___
 

(2011) (slip op., at 18) (internal quotation marks omitted).
 
 

 

Cite as: 575 U. S. ____ (2015) 9 

THOMAS, J., dissenting 

courts of the United States, as it may deem proper.” Id., 

at 284 (emphasis added).

Historically, “public rights” were understood as “rights

belonging to the people at large,” as distinguished from 

“the private unalienable rights of each individual.” Lansing v. Smith, 4 Wend. 9, 21 (N. Y. 1829) (Walworth, C.). 

This distinction is significant to our understanding of 

Article III, for while the legislative and executive branches 

may dispose of public rights at will—including through 

non-Article III adjudications—an exercise of the judicial 

power is required “when the government want[s] to act 

authoritatively upon core private rights that had vested in 

a particular individual.” Nelson, supra, at 569; see B&B 

Hardware, Inc. v. Hargis Industries, Inc., ante, at 11 

(THOMAS, J., dissenting). 

The distinction was well known at the time of the founding. In the tradition of John Locke, William Blackstone in 

his Commentaries identified the private rights to life, 

liberty, and property as the three “absolute” rights—so 

called because they “appertain[ed] and belong[ed] to particular men . . . merely as individuals,” not “to them as

members of society [or] standing in various relations to 

each other”—that is, not dependent upon the will of the 

government. 1 W. Blackstone, Commentaries on the Laws 

of England 119 (1765) (Commentaries); see also Nelson, 

supra, at 567.3 Public rights, by contrast, belonged to “the

whole community, considered as a community, in its social 

aggregate capacity.” 4 Commentaries 5 (1769); see also 

Nelson, supra, at 567. As the modern doctrine of the 

—————— 

3The protection of private rights in the Anglo-American tradition

goes back to at least Magna Carta. The original 1215 charter is replete 

with restrictions on the King’s ability to proceed against private rights,

including most notably the provision that “[n]o free man shall be taken,

imprisoned, disseised, outlawed, banished, or in any way destroyed, . . . 

except by the lawful judgment of his peers and by the law of the land.”

A. Howard, Magna Carta: Text and Commentary 43 (1964). 
 

 

10 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

THOMAS, J., dissenting 

separation of powers emerged, “the courts became identified with the enforcement of private right, and administrative agencies with the execution of public policy.” Jaffe, 

The Right to Judicial Review I, 71 Harv. L. Rev. 401, 413

(1958).

The Founders carried this idea forward into the Vesting

Clauses of our Constitution. Those Clauses were understood to play a role in ensuring that the federal courts

alone could act to deprive individuals of private rights

because the power to act conclusively against those rights 

was the core of the judicial power. As one early treatise

explained, the judiciary is “that department of the government to whom the protection of the rights of the individual is by the constitution especially confided.” 1 St. 

George Tucker, Blackstone’s Commentaries, App. 357 

(1803). If “public rights” were not thought to fall within

the core of the judicial power, then that could explain why 

Congress would be able to perform or authorize nonArticle III adjudications of public rights without transgressing Article III’s Vesting Clause.

Nineteenth-century American jurisprudence confirms 

that an exercise of the judicial power was thought to be 

necessary for the disposition of private, but not public, 

rights.4 See B&B Hardware, ante, at 12. The treatment of 

—————— 

4Contemporary state-court decisions provide even more explication of

the distinction between public and private rights, and many expressly

tie the distinction to the separation of powers. See, e.g., Newland v. 

Marsh, 19 Ill. 376, 383 (1857) (“The legislative power . . . cannot directly reach the property or vested rights of the citizen, by providing for

their forfeiture or transfer to another, without trial and judgment in 

the courts; for to do so, would be the exercise of a power which belongs

to another branch of the government, and is forbidden to the legislature”); see also Gaines v. Gaines, 48 Ky. 295, 301 (1848) (describing the

judiciary as “the tribunal appointed by the Constitution and the law, 

for the ascertainment of private rights and the redress of private

wrongs”); State ex rel. Atty. Gen. v. Hawkins, 44 Ohio St. 98, 109, 5 N. E. 

228, 232 (1886) (“[P]ower to hear and determine rights of property and 
Cite as: 575 U. S. ____ (2015) 11 

THOMAS, J., dissenting 

land patents illustrates the point well: Although Congress 

could authorize executive agencies to dispose of public

rights in land—often by means of adjudicating a claimant’s qualifications for a land grant under a statute—the

United States had to go to the courts if it wished to revoke 

a patent. See generally Nelson, 107 Colum. L. Rev., at 

577–578 (discussing land patents). That differential 

treatment reflected the fact that, once “legal title passed 

out of the United States,” the patent “[u]ndoubtedly” 

constituted “a vested right” and consequently could “only 

be divested according to law.” Johnson v. Towsley, 13 

Wall. 72, 84–85 (1871). By contrast, a party who sought to

protect only a “public right” in the land had no such vested

right and could not invoke the intervention of Article III 

courts. See Smelting Co. v. Kemp, 104 U. S. 636, 647 

(1882) (“It does not lie in the mouth of a stranger to the 

title to complain of the act of the government with respect

to it”); see also Bagnell v. Broderick, 13 Pet. 436, 450 

(1839) (refusing to examine the propriety of a land patent

on the ground that “Congress has the sole power to declare

the dignity and effect of titles emanating from the United 

States”).

Over time, the line between public and private rights 

has blurred, along with the Court’s treatment of the 

judicial power. See B&B Hardware, ante, at 9–10, 12. 

The source of the confusion may be Murray’s Lessee—the 

putative source of the public rights doctrine itself. Dictum in the case muddles the distinction between private 

and public rights, and the decision is perhaps better

read as an expression of the principle of sovereign immunity. Granfinanciera, 492 U. S., at 68–69 (opinion of 

—————— 

of person between private parties is judicial, and can only be conferred 

on the courts”); see generally T. Cooley, Constitutional Limitations 175 

(1868) (explaining that only the judicial power was thought capable of 

disposing of private rights). 
 

 

 

12 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

THOMAS, J., dissenting 

SCALIA, J.).5 Some cases appear to have done just that, 

thus reading Murray’s Lessee to apply only in disputes

arising between the Government and others. See, e.g., 

Crowell v. Benson, 285 U. S. 22, 50 (1932).

Another strain of cases has confused the distinction 

between private and public rights, with some cases treating public rights as the equivalent of private rights entitled to full judicial review, American School of Magnetic 

Healing v. McAnnulty, 187 U. S. 94, 108 (1902), and 

others treating what appear to be private rights as public 

rights on which executive action could be conclusive, see, 

e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 

381, 401–404 (1940); see also B&B Hardware, ante, at 12 

(observing that Sunshine Anthracite may reflect a unique 

historical exception for tax cases). Cf. Northern Pipeline, 

458 U. S., at 84–85 (plurality opinion) (discussing other 

cases that appear to reflect the historical distinction 

between private rights and rights created by Congress). 

Perhaps this confusion explains why the Court has more

recently expanded the concept of public rights to include 

any right “so closely integrated into a public regulatory

scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.” Thomas v. Union Carbide Agricultural Products 

Co., 473 U. S. 568, 593–594 (1985). A return to the 

—————— 

5Another potential explanation is that Murray’s Lessee v. Hoboken 

Land & Improvement Co., 18 How. 272 (1856), recognized yet another

special exception to Article III’s allocation of judicial power, applicable 

whenever the Government exercises its power of taxation. Nelson, 

Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 588–

589 (2007); see also B&B Hardware, Inc. v. Hargis Industries, Inc., 

ante, at 12 (THOMAS, J., dissenting) (discussing other decisions that

appear to rest on this exception). To the extent that Murray’s Lessee

purported to recognize such an exception, how-ever, it did so only in 

dictum after noting that the statute provided a mechanism for judicial

review of the accounting decision on which the distress warrant was 

based. 18 How., at 280–281. 
 

Cite as: 575 U. S. ____ (2015) 13 

THOMAS, J., dissenting 

historical understanding of “public rights,” however, would 

lead to the conclusion that the inalienable core of the 

judicial power vested by Article III in the federal courts is

the power to adjudicate private rights disputes. 

2 

Although Congress did not enact a permanent federal

bankruptcy law until the late 19th century, it has assigned the adjudication of certain bankruptcy disputes to 

non-Article III actors since as early as 1800. Plank, Why

Bankruptcy Judges Need Not and Should Not Be Article 

III Judges, 72 Am. Bankr. L. J. 567, 608 (1998) (describing 

the bankruptcy powers vested by Congress in non-Article 

III judges). Modern bankruptcy courts, however, adjudicate a far broader array of disputes than their earliest

historical counterparts. And this Court has remained 

carefully noncommittal about the source of their authority

to do so. See Northern Pipeline, 458 U. S., at 71 (plurality 

opinion).

Applying the historical categories of cases discussed 

above, one can understand why. Bankruptcy courts clearly 

do not qualify as territorial courts or courts-martial, but 

they are not an easy fit in the “public rights” category,

either. No doubt certain aspects of bankruptcy involve

rights lying outside the core of the judicial power. The 

most obvious of these is the right to discharge, which a

party may obtain if he satisfies certain statutory criteria. 

Ibid. Discharge is not itself a private right, but, together

with the claims allowance process that precedes it, it can 

act conclusively on the core private rights of the debtor’s 

creditors. We have nevertheless implicitly recognized that

the claims allowance process may proceed in a bankruptcy 

court, as can any matter that would necessarily be resolved by that process, even one that affects core private 

rights. Stern, 564 U. S., at ___–___ (slip op., at 30–31). 

For this reason, bankruptcy courts and their prede-
 

 

 

14 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

THOMAS, J., dissenting 

cessors more likely enjoy a unique, textually based exception, much like territorial courts and courts-martial do. 

See id., at ___ (SCALIA, J., concurring) (slip op., at 2).

That is, Article I’s Bankruptcy Clause serves to carve 

cases and controversies traditionally subject to resolution

by bankruptcy commissioners out of Article III, giving 

Congress the discretion, within those historical boundaries, to provide for their resolution outside of Article III 

courts. 

3 

Because Stern claims by definition fall outside of the 

historical boundaries of the bankruptcy carve-out, they are 

subject to Article III. This means that, if their adjudication requires the exercise of the judicial power, then only

Article III courts may perform it.

Although Stern claims indisputably involve private

rights, the “public rights” doctrine suggests a way in

which party consent may transform the function of adjudicating Stern claims into one that does not require the

exercise of the judicial power. The premise of the “public

rights” doctrine, as described above, is not that public

rights affirmatively require adjudication by some other 

governmental power, but that the Government has a freer 

hand when private rights are not at issue. Accordingly, 

this premise may not require the presence of a public right 

at all, but may apply equally to any situation in which

private rights are not asserted. 

Party consent, in turn, may have the effect of lifting that

“private rights” bar, much in the way that waiver lifts the

bar imposed by the right to a jury trial. Individuals may

dispose of their own private rights freely, without judicial

intervention. A party who consents to adjudication of a 

Stern claim by a bankruptcy court is merely making a

conditional surrender of whatever private right he has on

the line, contingent on some future event—namely, that 
 

 

 

Cite as: 575 U. S. ____ (2015) 15 

THOMAS, J., dissenting 

the bankruptcy court rules against him. Indeed, it is on 

this logic that the law has long encouraged and permitted

private settlement of disputes, including through the 

action of an arbitrator not vested with the judicial power.

See ante, at 1 (ALITO, J., concurring in part and concurring

in judgment); T. Cooley, Constitutional Limitations 399 

(1868). Perhaps for this reason, decisions discussing the 

relationship between private rights and the judicial power 

have emphasized the “involuntary divestiture” of a private 

right. Newland v. Marsh, 19 Ill. 376, 382–383 (1857) 

(emphasis added).

But all of this does not necessarily mean that the majority has wound up in the right place by the wrong path. 

Even if consent could lift the private-rights barrier to nonjudicial Government action, it would not necessarily follow 

that consent removes the Stern adjudication from the core 

of the judicial power. There may be other aspects of the 

adjudication that demand the exercise of the judicial

power, such as entry of a final judgment enforceable without any further action by an Article III court. We have 

recognized that judgments entered by Article III courts

bear unique qualities that spring from the exercise of the 

judicial power, Plaut v. Spendthrift Farm, Inc., 514 U. S. 

211, 218–219 (1995), and it may be that the entry of a

final judgment bearing these qualities—irrespective of the

subject matter of the dispute—is a quintessential judicial

function. See ante, at 16–17 (ROBERTS, C. J., dissenting). 

See generally Northern Pipeline, supra, at 85–86, and n. 

38 (plurality opinion) (distinguishing the agency orders at

issue in Crowell from bankruptcy court orders on this 

ground). As Thomas Cooley explained in his influential

treatise, “If the judges should sit to hear . . . controversies 

[beyond their cognizance], they would not sit as a court; at

the most they would be arbitrators only, and their . . .

decision could not be binding as a judgment, but only as 
 

16 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

THOMAS, J., dissenting 

an award.” Cooley, supra, at 399.6 

Ultimately, this case implicates difficult questions about 

the nature of bankruptcy procedure, judicial power, and 

remedies. In particular, if we were to determine that

current practice accords bankruptcy court judgments a 

feature that demands the exercise of the judicial power,

would that mean that all bankruptcy judgments resolving 

Stern claims are void, or only that courts may not give

effect to that single feature that triggers Article III? The 

parties have briefed none of these issues, so I do not resolve them. But the number and magnitude of these 

important questions—questions implicated by thousands

of bankruptcy and magistrate judge decisions each year—

merit closer attention than the majority has given them. 

—————— 

6Numerous 19th-century State Supreme Courts held unconstitutional 

laws authorizing individuals to consent to have their cases heard by an

individual not qualified as a judge under provisions of State Constitutions similar to Article III, §1. See, e.g., Winchester v. Ayres, 4 Iowa 

104 (1853); Haverly Invincible Mining Co. v. Howcutt, 6 Colo. 574, 575– 

576 (1883); Ex parte Alabama State Bar Assn., 92 Ala. 113, 8 So. 768 

(1891); see also Cooley, Constitutional Limitations, at 399. Acknowledging the similarity between the practices under review and the 

legitimate practice of private arbitration, many of these decisions

premised their finding of unconstitutionality on the issuance of a 

judgment or other writ that only judges may issue. See, e.g., Bishop v. 

Nelson, 83 Ill. 601 (1876) (per curiam) (“This was not an arbitration . . . 

but it was an attempt to confer upon [Mr. Wood] the power of a judge,

to decide the pending case, and he did decide it, the court carrying out 

his decision by entering the judgment he had reached, and not [its] own

judgment”); Van Slyke v. Trempealeau Cty. Farmers’ Mut. Fire Ins. Co., 

39 Wis. 390, 393 (1876) (“We cannot look into the bill of exceptions or

consider the order denying a new trial, because both are unofficial and

devoid of judicial authority”); see also id., at 395–396 (tracing this rule

back to English understandings of judicial power). These decisions 

treat the rule as a corollary to the rule that parties may not, by consent, 

confer jurisdiction. See, e.g., Higby v. Ayres, 14 Kan. 331, 334 (1875); 

Hoagland v. Creed, 81 Ill. 506, 507–508 (1876); see also Cooley, supra,

at 399. 
 

Cite as: 575 U. S. ____ (2015) 17 

THOMAS, J., dissenting
 

B 

Even assuming we were to decide that adjudication of 

Stern claims with the consent of the parties does not require the exercise of the judicial power, that decision

would not end the constitutional inquiry. As instrumentalities of the Federal Government, the bankruptcy courts

must act pursuant to some constitutional grant of authority. Even if the functions bankruptcy courts perform do not

require an exercise of legislative, executive, or judicial 

power, we would need to identify the source of Congress’ 

authority to establish them and to authorize them to act. 

The historical carve-outs for territorial courts and 

courts-martial might provide some guidance. The Court 

has anchored Congress’ authority to create territorial 

courts in “the general right of sovereignty which exists in 

the government, or in virtue of that clause which enables

Congress to make all needful rules and regulations, respecting the territory belonging to the United States.” 

Canter, 1 Pet., at 546. And it has anchored Congress’ 

authority to create courts-martial in Congress’ Article I 

powers concerning the Army and Navy, understood alongside the Sixth Amendment’s exception of “‘cases arising in

the land or naval forces,’” from the grand jury requirement, and Article II’s requirement that the President

serve as commander in chief. Dynes, 20 How., at 78–79. 

Although our cases examining the constitutionality of 

statutes allocating the power to the bankruptcy courts

have not considered the source of Congress’ authority to 

establish them, the obvious textual basis is the fourth 

clause of Article I, §8, which empowers Congress to “establish . . . uniform Laws on the subject of Bankruptcies

throughout the United States.”7 But as with the other two 

—————— 

7 In Northern Pipeline, the plurality rejected the argument that “Congress’ constitutional authority to establish ‘uniform Laws on the subject 

of Bankruptcies throughout the United States’ carries with it an 
 

 

 

 

18 WELLNESS INT’L NETWORK, LTD. v. SHARIF 

THOMAS, J., dissenting 

historical carve-outs, Congress’ power to establish tribunals within that grant is informed by historical understandings of the bankruptcy power.8 We have suggested

that, under this historical understanding, Congress has

the power to establish bankruptcy courts that exercise

jurisdiction akin to that of bankruptcy commissioners in 

England, subject to review traditionally had in England. 

Ante, at 3–4 (ROBERTS, C. J., dissenting). Although Stern 

claims, by definition, lie outside those historical boundaries, a historical practice of allowing broader adjudication

by bankruptcy commissioners acting with the consent of 

the parties could alter the analysis. The parties once 

again do not brief these questions, but they merit closer 

attention by this Court. 

* * * 

Whether parties may consent to bankruptcy court adjudication of Stern claims is a difficult constitutional question. It turns on issues that are not adequately considered

by the Court or briefed by the parties. And it cannot—and 

should not—be resolved through a cursory reading of 

Schor, which itself is hardly a model of careful constitutional interpretation. For these reasons, I would resolve 

—————— 

inherent power to establish legislative courts capable of adjudicating

‘bankruptcy-related controversies.’ ” Northern Pipeline Constr. Co. v. 

Marathon Pipe Line Co., 458 U. S. 50, 72 (1982) (plurality opinion) 

(citation omitted). In that context, however, it was considering whether 

Article III imposes limits on Congress’ bankruptcy power, id., at 73, 

which is a distinct question from whether Congress has the power to 

establish bankruptcy courts as an antecedent matter, leaving aside any

Article III limitations. 8 I would be wary of concluding that every grant of lawmaking authority to Congress includes the power to establish “legislative courts” 

as part of its legislative scheme. Some have suggested that Congress’

authority to establish tribunals pursuant to substantive grants of

authority is informed and limited by its Article I power to “constitute 

Tribunals inferior to the supreme Court,” U. S. Const., Art. I, §8 cl. 9.

See Pfander, 118 Harv. L. Rev., at 671–697. 
Cite as: 575 U. S. ____ (2015) 19 

THOMAS, J., dissenting 

the case on the narrow grounds set forth in Part I of THE 

CHIEF JUSTICE’s opinion. I respectfully dissent.