Wellness Int'l Network, Ltd. v. Sharif

(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., at

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

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

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

confirms that consent remains highly relevant when determining, as we

do here, whether a particular adjudication in fact raises constitutional

concerns. See id., at 855 (“separation of powers concerns are 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.