Justices Scalia and Thomas Go to the Mat

Yesterday's largely inconsequential Supreme Court decision in Gonzalez v. United States confirms (once again) that Justices Scalia and Thomas are not simply conservatives. Each one has what we might describe as a Hillary Clinton-esque willingness to fight every conceivable battle as though it were Armageddon.

In a 1989 case, Gomez v. United States, the Supreme Court held that the Federal Magistrates Act did not permit a magistrate (rather than a life-tenured Article III judge) to preside over jury selection ("voir dire") in a federal felony case, absent the defendant's consent. Two years later, in Peretz v. United States, the Court held that the Act and the Constitution do permit a magistrate to preside over such jury selection if the defendant does consent. Yesterday's case raised the interstitial question of whether the consent necessary to validate the magistrate's role must be obtained directly from the defendant, or whether it is permissible for defense counsel to consent to a magistrate's conduct of jury selection on her client's behalf. Writing for everyone other than Justices Scalia and Thomas, Justice Kennedy said that this was the sort of tactical decision that was in the core of the lawyer's expertise, rather than the sort of "fundamental" issue (such as whether to plead guilty) that must be made by the client.

The stakes in Gonzalez appeared to be pretty darn low. Did the case look more like Gomez or Peretz? One might quibble with the majority's resolution of that question, but surely the issue must rank as fairly unimportant in the vast majority of criminal cases. And yet, to judge from the tone of the two separate critical opinions, one would have thought the sky was falling.

Justice Scalia---who agreed with the majority's resolution of the case---only concurred in the result because Justice Kennedy's opinion used what Justice Scalia regards as a dirty word: "fundamental." Justice Scalia doesn't know how judges are supposed to decide what trial rights are "fundamental" other than by consulting their own consciences, which is, in his book, a no-no, because that's how they decided that contraception and abortion are "fundamental" rights.

With respect, let me suggest that Justice Scalia is taking his own talking points too seriously. I get the objection to the Court recognizing unenumerated rights for purposes of substantive due process. I don't agree, but I understand the worry. But surely if there is any place where federal judges are qualified to "make up" the law, it's when the law consists of procedures to govern criminal trials in federal court. And in this particular case, of course, the majority isn't even blocking legislative action. If Congress wants to stop lawyers from consenting to magistrate-supervised jury selection, it can do so by amending the statute. That's why Justice Scalia concurred in the result, after all.

If Justice Scalia confused yesterday's decision with Roe v. Wade, Justice Thomas showed, once again, why he is the least practical Justice. He thinks that Peretz itself---the case that said a defendant can personally and expressly consent to magistrate-supervised jury selection---was wrong as an interpretation of the Federal Magistrates Act. He nominally acknowledges that if Peretz is wrong, Congress can fix the problem by amending the law, and that therefore stare decisis should be particularly strong in this case. Nevertheless, Justice Thomas thinks that Peretz is so clearly wrong that he cannot follow it.

Why is that impractical? Because stare decisis is a rule that reflects the cooperative nature of judicial decision making. In order for the Court's precedents to create stable, predictable law, they have to bind the members of the Court who disagree with them, at least prima facie, because in any given case, different Justices will have different views about how to decide the matter if everything is up for grabs. Yet Justice Thomas appears to attach very little weight to precedent (a point Justice Scalia often makes in explaining the differences between their respective judicial philosophies). Justice Thomas can get away with treating everything as up for grabs only because he is the only sitting Justice who takes such a view. A Court packed with Justices who gave so little weight to precedent could barely function.

Posted by Mike Dorf