Last week the Supreme Court issued an opinion in a seemingly straightforward statutory interpretation case, Gonzalez v. United States. At issue was whether the Federal Magistrates Act (FMA) permits magistrate judges (rather than Article III district court judges) to preside over voir dire and jury selection in a felony criminal trial if defense counsel consents to the arrangement, but absent express consent from the defendant himself. Section 636(b)(3) of the FMA states that: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” The Court concluded that the statutory language and relevant precedents (Gomez v. United States and Peretz v. United States) did not bar delegation of felony jury selection and voir dire to a magistrate. But more interesting, in my view, than the outcome reached by the Court is the argument it brushed aside with little fanfare in getting there: constitutional avoidance.
It is a well-worn if not-exactly-well-loved canon of statutory construction that when a statute is susceptible of two interpretations, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the Court’s duty is to adopt the interpretation that steers clear of constitutional difficulties. The petitioner in this case argued that the decision to have a magistrate judge rather than an Article III judge preside at jury selection is a fundamental choice, involving a defendant’s fundamental rights, and that interpreting the FMA to authorize waiver of this choice without the express consent of the defendant raised a question of constitutional significance. Given the canon of constitutional avoidance, he pressed the Court to require an explicit personal statement of consent before a magistrate judge may be permitted to preside over felony jury selection. The Court, however, quickly waived away this argument, insisting that no serious constitutional is raised by such a delegation of authority to a magistrate, absent a defendant’s express consent, because: (1) as petitioner conceded, a magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination and selection; (2) the Article III district judge, insulated by life tenure and irreducible salary, is waiting in the wings, fully able to correct errors; (3) requiring the defendant to consent to a magistrate judge by way of an on-the-record personal statement is not dictated by precedent; and (4) such a requirement would burden the trial process. In other words, the Court relied on policy arguments to trump petitioner’s claim that felony defendants have a constitutional right to have an Article III judge preside over their trials, waivable only by the defendant personally.