More on the Waiver of Article III Requirements: Wellness International Network v. Sharif

My post of  1/11/15. “Are Federal Bench Trials in Criminal Cases Constitutional?”, argued  that the Article III jury trial requirement in criminal cases is a matter of the power of the federal courts and cannot be waived by the defendant. A similar issue of Article III requirements, this time in a bankruptcy context, was just decided in favor of waiver by the Court. Again practical considerations of court administration trumped the structural provisions of Article III, if not in quite as clear and dramatic a way as in the doctrine that the jury requirement is merely a waivable right.

I want to concede that the Wellness majority has a good argument when it comes to the judicial efficiency of letting bankruptcy courts decide cases that would otherwise require an Article III judge -- in the event that all parties so agree. It may also be not so likely that this will result in significant injustice.   

The requirement that only an Article III judge can give final judgment on a legal issue that would exist even were there no bankruptcy is a plausible reading of the Article III grant of cases and controversy power to judges with lifetime tenure and pay protection. It is, however, hardly as unequivocal as the prohibition of non-jury criminal trials. To what extent and under what restrictions Congress can create a system of delegation of Article III powers to non-Article III magistrates and bankruptcy judges is a subtle matter, whatever one’s approach to constitutional interpretation, and the case law reflects its difficulty.

Still, it having been established by Court precedent that  bankruptcy judges cannot give final judgment on “non-bankruptcy” issues, the Wellness majority conclusion that this is merely a personal right subject to waiver by all parties implicates the same core issues as the bench trials issue. Waivable rights are eating away at jurisdictional structure established by the Constitution.

As a political community we have interests in justice beyond the interests of the litigants in particular cases. In the real world, litigants are sometimes affected by considerations that have nothing to do with justice, litigation budgets for example. It is not too hard to imagine circumstances in which a well healed litigant could incentivize the waiver of an adversary  to enshrine, at least temporarily, a judgment or precedent favorable to itself and unfavorable to a large number of non-litigants.

You may not admire the politics of the dissenters in Wellness, Roberts, Scalia, and Thomas, but with respect to the question whether the apparently jurisdictional provisions of Article III should be interpreted as personal rights, waivable by litigants, I would urge you to give their arguments serious consideration.