Consenting to a Constitutional Violation

May 26th, 2015

In Wellness Int’l Network, Ltd. v. Sharif, Justice Sotomayor’s majority opinion and Chief Justice Roberts’s (not really a) dissent sparred over the role of consent with respect to whether assigning certain functions to bankruptcy judges violates Article III.

Chief Justice Roberts views this decision as letting down the Article “guard” and setting the precedent for a further erosion of the judicial power.

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 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 Chief argues that that the majority opinion allows consent to cure a constitutional violation:

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.

Citing Justice Scalia’s opinion in Noel Canning, the Chief stresses that a willingness to violate the separation of powers decreases, not increases, the presumption of constitutionality:

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)). …

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.

The majority counters that the fact that a party can consent is evidence that there is no Article III violation in the first place, not that the consent cures one.

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”).

The Chief contends that the implications of this ruling are stark:

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. …

he 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 holding need not be limited to bankruptcy.

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

Justice Sotomayor has some fun at the expense of the dissenters, and dismisses the gravity of the decision.

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. … 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.

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.

Birthright? Here is how the Chief described Article III:

Taken together, these provi­sions define the constitutional birthright of Article III judges: to “render dispositive judgments” in cases or con­ troversies within the bounds of federal jurisdiction. … 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?

In case you didn’t get the reference (I didn’t), that is Mark 8:37:

“For what does it profit a man to gain the whole world, and forfeit his soul? 37 “For what will a man give in exchange for his soul? 38″For whoever is ashamed of Me and My words in this adulterous and sinful generation, the Son of Man will also be ashamed of him when He comes in the glory of His Father with the holy angels.”

I like when the Chief writes a dissent. He gets sassy, and allows his perfectly-coiffed hair to get tussled.