Peretz V. United States - Justice Marshall's Dissent

Justice Marshall's Dissent

Justice Marshall disagreed that the parties' consent could vitiate the involvement of a magistrate. Congress did not, after all, specify jury selection in the Federal Magistrates Act. For him, the defendant's consent did not change this. Congress limited a magistrate's involvement to misdemeanors and other relatively minor roles, and jury selection is a major event in a felony trial. Furthermore, Congress did not allow an Article III judge to review the magistrate's involvement in jury selection. When the Court had previously ruled that the defendant's consent was the deciding factor in the propriety of a magistrate's involvement, it had also rested on a district judge's review of that involvement. Because there is none with respect to jury selection, a defendant's consent was not enough for Justice Marshall to extend a magistrate's involvement any further than Congress had expressly allowed.

Furthermore, Justice Marshall disputed that a magistrate's involvement in jury selection was consistent with Article III. The right to an Article III judge rests on his political independence and his role as a check and balance against the other two branches. The first of these is a personal right and therefore waivable. The second, however, is structural, and therefore unwaivable. Justice Marshall was willing to accede to the involvement of a magistrate if there would be de novo review in the district court. To justify a magistrate's involvement based on consent in the absence of judicial review went too far for Justice Marshall.