The U.S. Supreme Court released the following opinion on May 12, 2008:

• U.S. v. Gonzales (majority opinion by Kennedy, J., joined by Roberts, C.J., and Stevens, Souter, Ginsburg, Breyer, and Alito, JJ.; concurring opinion by Scalia, J.; dissenting opinion by Thomas, J.). Under Peretz v. U.S., 501 U.S. 923, 933 (1991), it is permissible, if the parties consent, for a federal magistrate judge to preside over the voir dire and selection of prospective jurors in a felony criminal trial. In this case, the magistrate asked counsel whether the parties would consent to a magistrate presiding over the voir dire and jury selection, and the petitioner’s counsel answered, “Yes.” Petitioner’s counsel then informed the magistrate that his client was present and would need an interpreter. The Petitioner was never asked personally if he would consent to the magistrate presiding over voir dire and jury selection. At the ensuing trial, the petitioner was convicted on all counts. He then challenged his convictions on appeal, arguing that his personal consent had been required for the magistrate to preside over the jury selection matters. On appeal, the U.S. Court of Appeals for the Fifth Circuit found that the petitioner’s arguments did not present a case of plain error, and affirmed. Finding that a Circuit-split existed on the question, the Supreme Court granted the petitioner’s writ of ceriorari.  Writing for the majority, Justice Kennedy held that the acceptance of a magistrate judge at jury selection is a tactical choice entrusted to counsel, such that either defendant’s counsel’s consent or defendant’s consent to the magistrate presiding over jury selection matters is sufficient. Slip op. at 7-8. Justice Kennedy specifically did not address a case where counsel’s consent was contradicted by a demand for an Article III judge by the defendant, as the record showed that there was no objection made by the defendant in this case. Concurring, Justice Scalia observed that he would agree with the majority’s result, but would not employ the tactical-versus-fundamental-right test used by the majority, as the instances where the Court had previously mandated the defendant’s personal consent were sui generis and did not establish a category of “fundamental” rights to which such personal consent should attach. Concurring op. at 2-3. Justice Scalia would instead hold that, “as a constitutional matter, all waivable rights (except, of course, the right to counsel) can be waived by counsel [alone].” Id. at 4. Dissenting, Justice Thomas conducted an extensive review of the Court’s precedent on waiver of criminal defendants’ rights, and opined that the proper course would be to overrule Peretz, find that the nonconsent of the defendant constituted a statutory violation of the Federal Magistrates Act, and reverse the judgment of the Fifth Circuit upon a finding that the plain error standard of review should be inapplicable to questions involving a defendant’s right to an Article III judge.