Wellness Int'l Network, Ltd. v. Sharif , 191 L. Ed. 2d 911 ( 2015 )

(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 petition-
ers, Wellness International Network, Ltd., and its owners (collective-
ly 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 alter-
ego, and that its assets were his personal property and part of his
bankruptcy estate. The Bankruptcy Court eventually entered a de-
fault judgment against Sharif. While Sharif’s appeal was pending in
District Court, but before briefing concluded, this Court held that Ar-
ticle III forbids bankruptcy courts to enter a final judgment on claims
that seek only to “augment” the bankruptcy estate and would other-
wise “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 alter-
ego 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 bal-
ances’ ” are implicated, “the parties cannot by consent cure the consti-
tutional 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 with-
out 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. Be-
cause 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 institu-
tional 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 constitu-
tional prerogatives of Article III courts. Bankruptcy judges are ap-
pointed 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 pos-
sess 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 par-
ties,” id., at 855, and “the power of the federal judiciary to take juris-
diction” 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 ad-
judication 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 ex-
press, 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 stand-
ard supplies the appropriate rule for bankruptcy court adjudications
and makes clear that a litigant’s consent—whether express or im-
plied—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 KENNE-
DY, GINSBURG, BREYER, and KAGAN, JJ., joined, and in which ALITO, J.,
joined in part. ALITO, J., filed an opinion concurring in part and con-
curring 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, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 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 Con-
gress may from time to time ordain and establish.” Con-
gress 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 with-
draw 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 bank-
ruptcy and magistrate judges, who do not enjoy the protec-
tions of Article III, to assist Article III courts in their
work. The number of magistrate and bankruptcy judge-
ships 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 non-
Article III judges with the boundaries set by the Constitu-
tion have not always been successful. In Northern Pipe-
line 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 authoriz-
ing 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 bank-
ruptcy proceedings to “referees.” Executive Benefits Ins.
——————
1 Congress 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.
2 Between 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 ‘prop-
erty in the actual or constructive possession of the bank-
ruptcy 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 exer-
cised under the former referee system.” Northern Pipe-
line, 458 U. S., at 54. The Act “[e]liminat[ed] the distinc-
tion 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 de-
leted). 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 unconstitu-
tional 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 dis-
trict.” §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 proceed-
in[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 nonexclu-
sive 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 ap-
propriate 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 non-
core proceedings: They may “hear and determine” such
proceedings, and “enter appropriate orders and judg-
ments,” 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 manu-
facturer of health and nutrition products.4 Wellness and
respondent Sharif entered into a contract under which
Sharif would distribute Wellness’ products. The relation-
ship quickly soured, and in 2005, Sharif sued Wellness in
——————
3 Congress 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 Well-
ness’ 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 peti-
tion 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 applica-
tion. 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. Well-
ness 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 eventu-
ally 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 proceed-
ing. 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 be-
cause Sharif “treats [the Trust’s] assets as his own prop-
erty.” 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 judg-
ment 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 inter-
ests.” 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 adjudi-
cation 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 Bank-
ruptcy Court lacked constitutional authority to enter final
judgment on count V.6
——————
5 Although 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 Interna-
tional Network was forfeiture rather than waiver”).
6 The Seventh Circuit concluded its opinion by considering the rem-
edy 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 Bank-
ruptcy 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 adjudi-
cation of entire disputes to non-Article III referees, mas-
ters, or arbitrators, for entry of final judgment in accord-
ance 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 arbitra-
tors”); Heckers v. Fowler, 2 Wall. 123, 131 (1865) (observ-
ing 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 arbitra-
tors 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 pro-
ceedings entirely when a bankruptcy court improperly enters final
judgment.
7 Because the Court concludes that the Bankruptcy Court could val-
idly enter judgment on Wellness’ claim with the parties’ consent, this
opinion does not address, and expresses no view on, Wellness’ alterna-
tive 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 com-
plaints 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 counter-
claims 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 bro-
ker’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, Arti-
cle III’s guarantee of an impartial and independent federal
adjudication is subject to waiver, just as are other per-
sonal 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 dis-
positive because Article III “not only preserves to litigants
their interest in an impartial and independent federal
adjudication of claims . . . , but also serves as ‘an insepa-
rable 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 adjudi-
cate 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 di-
minished, for it seems self-evident that just as Con-
gress 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 re-
solve their differences.” Id., at 855.
The option for parties to submit their disputes to a non-
Article III adjudicator was at most a “de minimis” in-
fringement 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 reiter-
ated the importance of consent to the constitutional analy-
sis. Both cases concerned whether the Federal Magis-
trates 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 Inrelevant 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 assum-
ing that a litigant may not waive structural protections
provided by Article III,” the Court found “no such struc-
tural 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 dis-
trict court, subject to veto by the parties. The decision
whether to empanel the jury whose selection a magis-
trate has supervised also remains entirely with the
district court. Because ‘the entire process takes place
under the district court’s total control and jurisdic-
tion,’ there is no danger that use of the magistrate in-
volves a ‘congressional attemp[t] “to transfer jurisdic-
tion [to non-Article III tribunals] for the purpose of
emasculating” constitutional courts.’ ” Id., at 937 (ci-
tations omitted; alteration in original).9
The lesson of Schor, Peretz, and the history that preced-
ed them is plain: The entitlement to an Article III adjudi-
cator is “a personal right” and thus ordinarily “subject to
——————
9 Discounting 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 “supervi-
sion 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 “imper-
missibly threate[n] the institutional integrity of the Judi-
cial 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, con-
versely, the extent to which the non-Article III forum exer-
cises the range of jurisdiction and powers normally
vested only in Article III courts, the origins and im-
portance of the right to be adjudicated, and the con-
cerns that drove Congress to depart from the re-
quirements of Article III.” Schor, 478 U. S., at 851(internal quotation marks omitted).
Applying these factors, we conclude that allowing bank-
ruptcy 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 con-
cerns 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 com-
mon law claims as an incident to the [bankruptcy courts’]
primary, and unchallenged, adjudicative function.” Id., at
854. “In such circumstances, the magnitude of any intru-
sion on the Judicial Branch can only be termed de mini-
mis.” Id., at 856.
Finally, there is no indication that Congress gave bank-
ruptcy 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 ‘congres-
sional 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 demon-
strated 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 Judi-
ciary’s labor on the shoulders of Article III judges. But
doing so would require a substantial increase in the num-
ber of district judgeships. Instead, Congress has supple-
mented the capacity of district courts through the able
——————
10 The principal dissent accuses us of making Sharif’s consent “ ‘dis-
positive’ in curing [a] structural separation of powers violation,” con-
trary 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., at850–851 (“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 dimin-
ished” 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, Legisla-
tive 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, Adminis-
trative 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, North-
ern 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 answer-
ing 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 bank-
ruptcy 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 non-
Article 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 “estab-
lish[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 quota-
tion 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 non-
consent 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 adjudi-
cation 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 bank-
ruptcy 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 Inadvancing 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 viola-
tion 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 princi-
pal 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 Bren-
nan, 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 ne-
cessities, 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 sce-
nario . . . .” 478 U. S., at 855 (citations omitted).
Adjudication based on litigant consent has been a con-
sistent feature of the federal court system since its incep-
tion. Reaffirming that unremarkable fact, we are confi-
dent, 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 con-
sent 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 non-
jury 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 ex-
press consent not only is more consistent with the text of
——————
12 Consistent with our precedents, the Courts of Appeals have unani-
mously upheld the constitutionality of §636(c). See Sinclair v. Wain-
wright, 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 Metro-
politan 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 sup-
plies 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 gamesman-
ship—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 volun-
tarily 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
——————
13 Even 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 re-
quire 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 Instru-
ments, Inc., 572 U. S. ___, ___ (2014) (slip op., at 14) (in-
ternal quotation marks omitted), we leave it to the Sev-
enth 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 con-
sent. 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.
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 “for-
malistic 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 proceed-
ing 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 Exec-
utive 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 appel-
late procedure. See B&B Hardware, Inc. v. Hargis Indus-
tries, 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 Arti­
cle 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 protec­
tions 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 pow­
ers.” Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 219
(1995). Under British rule, the King “made Judges de­
pendent 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 estab­
lish.” 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 enumer­
ated matters. Art. III, §2. Taken together, these provi­
sions define the constitutional birthright of Article III
judges: to “render dispositive judgments” in cases or con­
troversies 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 proceed­
ings. When the Framers gathered to draft the Constitu­
tion, 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 author-
ity 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 Pipe-
line, 458 U. S., at 71 (plurality opinion).
Although Congress may assign some bankruptcy pro­
ceedings to non-Article III courts, there are limits on that
power. In Northern Pipeline, the Court invalidated statu­
tory 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 adju­
dicator 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 re­
viewed 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 Pipe-
line, the tort claim in Stern involved “the stuff of the tradi­
tional actions at common law tried by the courts at West­
minster in 1789.” Id., at ___ (slip op., at 18) (quoting
Northern Pipeline, 458 U. S., at 90 (Rehnquist, J., concur­
ring 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 sub­
mitted 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 decid­
ing 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 inter­
ests 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. Eng­
lish 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 bro­
ken 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 whatso­
ever.” §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 adjudi-
cated 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. Taubel-
Scott-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 them­
selves under the 1898 Act.
In Mueller, for example, this Court held that a bank­
ruptcy 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 Dic­
tionary 302 (10th ed. 2014) (example of a merely “color­
able” 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. Impe-
rial 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, be­
cause “[m]ere legal paraphernalia will not suffice to trans­
form 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 prop­
erty in possession of debtor’s agent from fraudulent con­
veyance 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 excep­
tion 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 constitu­
tional authority to enter final judgment on Wellness’s
claim either way. The majority rests its decision on Sha­
rif ’s purported consent to the Bankruptcy Court’s adjudi­
cation. 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 Legisla­
tive, 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 Execu­
tive, 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 sepa­
ration of powers belong not to any branch of the Govern­
ment 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 separa­
tion 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 em­
brace of a separation of powers violation weaken the
Court’s scrutiny. To the contrary, the branches’ “enthusi­
asm” 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) (quot­
ing 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 pow­
ers 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 fed­
eral 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 tripar­
tite 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 re­
quired”); 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 en­
forceable without any action by Article III courts, and
authority to adjudicate counterclaims entirely independ­
ent 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 separa­
tion 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 con­
sent 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 re­
sponded 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 author­
ize 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 govern­
ment 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 struc­
tural protections the Framers carefully devised. See
Department of Transportation v. Association of American
Railroads, 575 U. S. ___, ___–___ (2015) (ALITO, J., con­
curring) (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 supervi­
sion 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 proceed­
ings 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, mas­
ters, 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 Colo-
rado 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-A-
Center, 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 part­
ners to submit a difference of opinion to a mutually trusted
friend. Arbitration agreements, like most private con­
tracts, 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 consti­
tutional concern. As the concurrence acknowledges, only
Article III judges—not arbitrators—may enter final judg­
ments enforcing arbitration awards. Ante, at 1.
The discussion of magistrate judges, masters, arbitra­
tors, 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 Philadel­
phia, 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 constitu­
tional authority will escape notice. Far more likely, how­
ever, 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 Metropoli-
tan Washington Airports Authority v. Citizens for Abate-
ment 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 Legisla­
ture’s present solicitude provides no guarantee of its fu­
ture 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 con­
sent, 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 subsist­
ence amounts to a power over his will,” id., No. 79, at 472
(A. Hamilton) (emphasis deleted). In response, the Fram­
ers 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 defensi­
ble 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 Arti­
cle 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 Legis­
lature. 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 provi-
sion 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 as-
sessment 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 univer-
sally 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 separa-
tion 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, indi-
vidual 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 govern-
ment 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 pow-
ers, there is no constitutional violation.
B
Consent to the adjudication of Stern claims by bank-
ruptcy 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
——————
1 There 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 indi-
vidual 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 im-
plies, thereby lifting that affirmative barrier on Govern-
ment 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 Constitu-
tion in a different governmental actor. Because the judi-
cial power is vested exclusively in Article III courts, non-
Article 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 au-
thority when they adjudicate Stern claims with the con-
sent 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 con-
trolled 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 pre-
sented 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 con-
troversies. 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 execu-
tion.” 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 cog-
nizance 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 excep-
tions, 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 au-
thorizing the adjudication of cases arising in the territo-
ries 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.” Amer-
ican Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828)
(Canter).2 And the Court has upheld laws authorizing the
——————
2 Chief Justice Marshall’s explanation in Canter has come under at-
tack on the ground that it fails to clarify the precise constitutional
status of the power exercised by the territorial courts. Lawson, Territo-
rial 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 Su-
preme 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 non-
Article 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 civil-
ian judicial power. Dynes v. Hoover, 20 How. 65, 78–79
(1858). Whatever their historical validity, these prece-
dents 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 defini-
tion 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 cate-
gory 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 longstand-
ing, 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 cen-
tury 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 con-
gress 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.” Lans-
ing 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 found-
ing. 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 par-
ticular 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
——————
3 The 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 identi-
fied with the enforcement of private right, and administra-
tive 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 under-
stood 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 gov-
ernment to whom the protection of the rights of the indi-
vidual 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 non-
Article III adjudications of public rights without trans-
gressing 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
——————
4 Contemporary 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 di-
rectly 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 legisla-
ture”); 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 claim-
ant’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. Dic-
tum 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 im-
munity. 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 treat-
ing public rights as the equivalent of private rights enti-
tled 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 resolu-
tion with limited involvement by the Article III judici-
ary.” Thomas v. Union Carbide Agricultural Products
Co., 473 U. S. 568, 593–594 (1985). A return to the
——————
5 Another 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 as-
signed 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, adjudi-
cate 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 re-
solved 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 excep-
tion, 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 bounda-
ries, 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 adjudica-
tion 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 adjudi-
cating 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 major-
ity has wound up in the right place by the wrong path.
Even if consent could lift the private-rights barrier to non-
judicial 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 with-
out 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 re-
solve 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.
——————
6 Numerous 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 Consti-
tutions 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. Acknowl-
edging 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 re-
quire the exercise of the judicial power, that decision
would not end the constitutional inquiry. As instrumen-
talities of the Federal Government, the bankruptcy courts
must act pursuant to some constitutional grant of author-
ity. 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, re-
specting 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 along-
side the Sixth Amendment’s exception of “ ‘cases arising in
the land or naval forces,’ ” from the grand jury require-
ment, 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 “estab-
lish . . . 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 “Con-
gress’ 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 tribu-
nals within that grant is informed by historical under-
standings 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 bounda-
ries, 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 adju-
dication of Stern claims is a difficult constitutional ques-
tion. 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 constitu-
tional 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 au-
thority 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.