NGUYEN v. UNITED STATES

Transcript: 

Argument of Jeffrey T. Green

Chief Justice Rehnquist: We'll hear argument first in Number 01-10873, Khanh Phuong Nguyen versus the United States and a companion case.

Mr. Green.

Mr. Green: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the participation of a non-Article III judge on an improperly constituted panel of the Ninth Circuit Court of Appeals renders the decision of that panel void.

The parties are in agreement that the designation of Judge Munson, who sits for a 10-year term on the Ninth Circuit panel, violated the statute pertaining to designations.

But that statute does more work than simply govern designations.

That statute protects the Article III character of the circuit courts of appeals by ensuring that only Article III judges are designated to sit on the courts of appeals.

Justice Ginsburg: Counsel, may I ask you, in this case, is it possible that a quorum of the court would consist of two members of a three-member panel on the court of appeals?

Mr. Green: Yes.

A properly constituted quorum... or a quorum of a properly constituted panel could... could be two members.

But our objection here, Justice O'Connor, is with the participation of a judge who, with all due respect, had no business being there in the first place.

Justice Ginsburg: Right.

Even... even though the panel was unanimous.

Mr. Green: Even though the panel was unanimous.

Justice Ginsburg: Now, if... if we were to agree with you and it went back, could the same two remaining judges constitute a properly arranged panel and decide the case again?

Mr. Green: No, for... for two reasons.

Principally because the rules that govern quorum call for a... a two-member panel rather than a three-member panel when there's some emergency that's certified or when there's a disqualification or recusal.

So I... I think there--

Justice Ginsburg: The same two could be on a new panel, however.

Mr. Green: --I would maintain not in this case for the simple reason that it appears that there has been some participation in the preparation of respondent's brief by the Chief Judge, as well as Judge Goodwin.

So we would maintain, given that involvement, it would be best to send this back to a newly constituted and properly constituted--

Justice Ginsburg: Is this... is this a right that can be waived?

No objection was made to this.

Mr. Green: --It is a right that can be waived, Justice O'Connor.

There's... there... that's... that I think is beyond peradventure.

But I don't think there was waiver here because there's no record evidence that indicates that there was a waiver.

This Court in New York v. Hill, for example, found a waiver--

Justice Scalia: There was no objection.

Justice Kennedy: I'm surprised you say that there can be a waiver.

So the Ninth Circuit could routinely send out to its litigants a waiver notice waiving participation of non-Article III personnel and there would be no structural objection?

I... I thought--

Mr. Green: --Well, I think--

Justice Kennedy: --I thought the whole point of... of your... of your error analysis is this affects the structural integrity of the court and it can't be waived.

Mr. Green: --Well, the additional point I was going to make in response to Justice O'Connor's question is that, in fact, even though there may be consent or even though there may be waiver, that has not stopped this Court from considering these important structural limitations in the past.

Justice Kennedy: Well, but what... what is your position?

Can the right be waived or not?

I mean, if... if you say the right can be waived, then it's just a question of whether or not they knew or should have known or something like that.

Mr. Green: I think that the decision is void, and so the position... the position would be that although all Article III provisions can be waived, in this instance because of the nature of the structural error, the consent or the waiver would not matter at all.

Chief Justice Rehnquist: Well, then... then your... counsel could have appeared in the Ninth Circuit fully aware that Judge Munson was sitting, go all the way through the argument and the briefing, never mentioning a word about it, and still the counsel would have the ability to void the thing later.

Mr. Green: I... I think that's... that's correct.

I think that would be the necessary consequence.

Justice Scalia: And not to void if he... if he won.

Right?

And not to void it if he won.

That's a nice position to be in.

You just sit there, don't make any objection.

If you win the case, everything is fine, and if you lose the case, you play dog in the manger and... and come up here and say, oop, this was an improper panel.

That doesn't sound to me the... the... like the way the system ought to work.

Mr. Green: But, Justice Scalia, I think that relies upon counsel in that situation being confident that this Court would grant a writ of certiorari.

I... I think that that kind of gamesmanship is really quite far-fetched.

This Court does not sit as a court of errors.

So even though I as counsel know that that might be error below, I would still have to... I would have to be relying on the... the equivalent of legal lightning striking, so to speak, in order to... to be certain that that error would be corrected.

Justice Ginsburg: Mr. Green, how does Article III... how can Article III be claimed by your client who was tried not before an Article III court, before a territorial court... your client has no entitlement to an Article III court.

So this seems... you're addressing an abstract question about the proper composition of a Ninth Circuit panel.

Yet, your litigant, your client has no entitlement to an Article III tribunal either at trial or on appeal.

So I think that there's a serious problem of whether your clients are positioned to raise the proper composition of an Article III court when they are not even entitled to an Article III court.

Mr. Green: That is true as a general matter at the trial court stage.

However, it... it's very much our position here... and I would disagree with the premise only insofar as you said as to the court of appeals.

Congress vested jurisdiction, pursuant to 28 U.S.C., section 1291, over appeals from the territories in the United States Circuit Court of Appeals.

Justice Ginsburg: Yes, but it didn't have to.

In other words, a case... an Article III... a case in which litigants are entitled to an Article III tribunal then must go to an Article III court.

Here Congress did designate the Ninth Circuit to hear these appeals from non-Article III trial courts.

But your clients... Congress didn't have to do that with respect to your clients.

Congress could have given them an Article IV appellate tribunal and that would have been okay.

Mr. Green: No.

I... When Congress vests jurisdiction in the United States courts of appeals, it does so not only to its... in accordance not only with its plenary power over the territories under Article IV, but also pursuant to Article III.

When Congress creates any inferior court and creates a jurisdiction in those courts, we would maintain that... that Congress is acting pursuant to Article III.

And in this instance--

Justice Ginsburg: But when Congress created the district court for the Northern Marianas, for Guam, what authority was it exercising?

Mr. Green: --It was... it was exercising its plenary authority pursuant to Article IV.

Justice Souter: I... I assume you've got a... maybe I'm wrong, but I assume you've got a fall-back and that is, okay, if you don't accept... we don't accept the constitutional position, you're still claiming that you have a legal entitlement to the Ninth Circuit and, hence, to a completely Article III court.

Mr. Green: That... that's exactly correct.

Justice Souter: And that could be true if Congress was acting under... under Article IV.

Mr. Green: That... that's correct.

Even if Congress was acting under Article IV, the statute plainly vests jurisdiction, and it... and it provides for independent... independent review of these appeals by an Article III court.

To... to... as respondent suggests, to... to argue that a panel of the court of appeals could be specially constituted for these appeals would rewrite section 1291.

Section 1291 says in very plain terms that jurisdiction shall vest in the court of appeals.

Justice Scalia: Mr. Green, suppose... suppose I disagree with you that... that you... you can sit through a trial and not object with... with impunity, and... and I think that you lose here unless you can show plain error and the usual requirements for avoiding the rule about... about contemporaneous objection.

Why do you come within the plain error requirements and, in particular, the requirement that... that there have... that... that the mistake seriously affect the fairness, integrity, or public reputation of judicial proceedings?

Why... why is that the case?

You acknowledge that your client could have been tried by non-Article III judges.

You acknowledge that the judge who sat, although he was non-Article III, was a Federal judge properly appointed.

He could have tried your client.

So how can I say that this... that the proceeding... yes, there was a... there was a mistake, but did... was it... was it a mistake that seriously affected the fairness, integrity, or public reputation of the proceeding?

I... I just don't see that.

Mr. Green: In the following senses, Justice Scalia, it did affect it.

First of all, with respect to fairness, the Ninth Circuit is... is a court of fully independent review, and I would maintain that precisely because the petitioners here were tried by an Article IV court, it makes sense, and it may actually be constitutionally required that in some sense their... their appellate review is had by an Article III court.

But in any event, Congress statutorily vested jurisdiction in a fully independent Article III court, and as a result of doing so, to put Judge Munson who sits for a 10-year term on a panel as a co-equal participant would affect the fairness of the court.

We have a unique--

Justice Ginsburg: Suppose the panel had included a judge who was holding a recess appointment, a Federal judge who was appointed on a recess basis and therefore at that point didn't have secure tenure?

Mr. Green: --I... I think there would be issues of... of qualification there, and there might even be... where a... a recess appointment was... was held in a... in a qualified sense, then I would say that was an Article III... an Article III qualification for an Article III court potentially.

If there were issues as to the qualification, we might be in the realm of the de facto officer doctrine.

Chief Justice Rehnquist: But Justice Scalia's question, at least as I understood it, I think meant for you to concentrate on why... why this would bring the administration of justice into disrepute, so to speak.

Mr. Green: Well--

Chief Justice Rehnquist: You... you make your argument that this was improper, what was done, and the Government agrees.

But there's an additional requirement here under plain error.

Mr. Green: --Yes, and... and I would add to my response to Justice Scalia that we have an amicus brief here from Judge Moore who sits in precisely the same seat, so to speak, that Judge Munson sits as a territorial judge in the Virgin Islands.

The amicus brief of Judge Moore points out very plainly that he views himself as open to question with regard to his impartiality because he is subject to the hostile treatment... to use Justice Douglas' phraseology, the hostile treatment of the press and the... and the glowering disfavor of those who have in their hands the power of reappointment.

Justice Scalia: Gee, he... he should resign if he feels that way, it seems to me.

Unknown Speaker: [Laughter]

Mr. Green: He wants... he... he prefers that you convert him to an Article III judge, so--

[Laughter]

Justice Scalia: I'm sure he does.

I'm sure he does.

Justice Breyer: I mean, you... you have a... a statutory argument.

Mr. Green: Yes.

Justice Breyer: And you have a constitutional argument.

Mr. Green: Yes.

Justice Breyer: All right.

Let's assume away the statutory argument for the moment.

There you have the problem... you're... you're right that it's contrary to the statute, but maybe it isn't plain error.

I'm focusing only on the constitutional argument, and from the point of view of the constitutional argument, I would like you to assume the statute says the opposite.

The statute says that this judge can sit.

All right.

So purposes of a constitutional argument, why can't your party waive... why can't your clients have waived that?

My particular thought is that we're just considering a case in which... a different case in which it's at least arguable... there are two sides to the argument... whether two parties can get together and have a magistrate, who is not an Article III judge, try their case.

The consent simply consisting of the fact they went ahead without objection.

In that case, there's the statute, but for present purposes, we're assuming the opposite statute.

So I mean, if it's at least arguable that you could have consent, shown only by the fact they went ahead to a trial before a magistrate and that would be enough to validate constitutionally the magistrate trying the case, why isn't the fact that you went ahead here constitutionally sufficient to show that you agreed to the trial before... the... the appeal that included one judge from Guam?

Mr. Green: Because this Court has... has said that the claims of structural validity, claims that go to the very validity of the tribunal itself, are claims which invoke institutional interests, not just personal interests--

Justice Breyer: Now, I understand that, but my question is, how is that any more true or less true where what they've done is consent through behavior to trial of a case before a magistrate?

Mr. Green: --Well, this Court has never... this Court has never addressed the question of whether you can have--

Justice Breyer: You think that magistrate trials--

Mr. Green: --a trial--

Justice Breyer: --through consent are unconstitutional?

Mr. Green: --I'm sorry?

Justice Breyer: No, no.

Sorry.

I didn't mean to interrupt you.

I jumped ahead to... thinking what you were going to say before listening to what you were going to say.

Unknown Speaker: [Laughter]

Justice Breyer: And I want to hear what you're going to say.

Mr. Green: I do that sometimes too.

Justice Breyer: My fault.

Mr. Green: The Court has... the Court has never before held that it would be permissible for a... or for a magistrate to conduct a full trial.

And that I would maintain because that also might affect institutional interests could also not be subject to waiver or consent.

Justice Breyer: So are you saying--

Mr. Green: That's... that argument is certainly--

Justice Breyer: --if we agree with you then, if we agree with you that consent through behavior is not good enough constitutionally, we would also be saying it is unconstitutional to have consent to a trial before a magistrate.

You see, that's quite a... a... if you're going to say yes to that, that's a problem.

Mr. Green: --No, I... I understand that.

But again, I'm... I'm going to go to the dividing line between Article III interests and Appointments Clause interests and those structural limitations and structural protections in the court system which are not quite the same as the kind of structural trial errors that this Court has addressed in... in Gomez, that this Court addressed last term in Cotton.

Those really are errors that go to the validity of the claim, not necessarily to the validity of the... or to the very validity of the institutional interests.

I think the hypothetical that you posit is actually Glidden, and in Glidden, this Court held that even where the designation of the judges from the Court of Claims and the Court of Customs and Patent Appeals was lawful in that sense, the Court took pains to look and see whether the courts from which those judges were designated were Article III courts.

Chief Justice Rehnquist: Well, Glidden... really there was no... no opinion for the Court in that case.

Mr. Green: No, there wasn't, but the Chief Justice and Justice Clark in that case concurred in the result, and the difference that they had with the majority was that they didn't think that Bakelite and Williams should be deemed overruled, only that they had been superseded by subsequent events, including the grant of lifetime tenure to the judges on the Court of Claims and to the... to the Court of Customs and Patent Appeals.

Chief Justice Rehnquist: But they... they didn't join the opinion, did they, of Justice--

Mr. Green: No.

No, they did not.

But I... I would maintain that there was a... a majority of five on a seven-member Court because two of the Justices had recused themselves.

A majority of five.

Justice Stevens: --In the Government's brief, they mention a conversation with the Chief Judge of the Ninth Circuit by a former lawyer for your client.

I'm curious to know, A, whether you disagree with what is said, and B, how did they get in... how does that get before us?

Mr. Green: I can't answer the second question.

To be frank, I'd like to know the answer to the second question as well.

But as to the first question, I really would start with the proposition that I don't think it matters.

I... I don't think it matters here.

The conversation, even as reported by respondents, would not in... in my mind and in our position constitute a waiver or consent.

The issue of who hears your appeal is probably so important that it's necessary that that be done somehow in the defendant's presence.

Respondent relies on Olano.

In Olano, the Court took pains to point out that the defendants were present when the discussions of whether the... the alternate jurors could deliberate or not.

Here I would say this is... this would be the same sort of issue subject to the same sort of waiver and consent requirements.

Justice Ginsburg: That's odd in a... in a circuit that has the vast majority of its appeals decided without any oral argument.

You said that the defendant has to be there?

Your party has to be there?

Mr. Green: I think for... he doesn't have to be there, but there would have to be some indication on... on the record, in addition to the conversation that... that respondents recite, that... that Petitioner Nguyen understood that there was... that... that she was waiving some important right to a fully independent review by an Article III court.

And I want to stress, as I say that, that... that this claim that respondents make with respect to waiver and consent really affects only one of the petitioners here.

We have to continue with the... with the case of Petitioner Phan for whom no oral argument was made.

Justice Ginsburg: But this important right that you... you were relying on, it's her right only because there happens to be a statute that sets up the Ninth Circuit as the appellate forum.

You have recognized that she did not have any independent right to that kind of forum.

She could have had... since the court... the... the authority at trial is determined by Article IV, similarly for territory authority on appeal.

Mr. Green: But even if she had only a statutory right in that sense, it's... it is the case that Congress creates jurisdiction and creates the inferior courts pursuant to Article III under a statute.

That doesn't mean that constitutional protections and constitutional rights don't attend the statutory grants of jurisdiction and... and the activities of the courts that are created pursuant to Article III.

There are numerous examples of... of pure statutory rights.

Let's take, for example, the right to appeal.

That is merely a statutory right.

This Court has not held that that's a constitutional right.

Justice Ginsburg: Yes, but ordinarily statutory rights can be forfeited if you don't assert them at the earliest time when you reasonably could.

Mr. Green: That is... that is true.

But here--

Justice Ginsburg: And I'm not using the word waiver.

It's not a question of a person consenting, but forfeiting by not raising it at the earliest reasonable stage.

Mr. Green: --That is true, but this Court has held in cases that involve similar Article III issues and similar issues of the Appointments Clause that... that issues of consent and waiver are not dispositive.

A fortiori then, I think issues of forfeiture would not be dispositive.

Justice Breyer: I have one question on the merits I'd like to ask you.

Let's assume we get to the merits of a constitutional question.

I assume for that purpose that the statute says, the Ninth Circuit shall travel to Guam and hear appeals and for purposes of this... for purposes of this voyage to Guam to hear the appeal, the make-up of the panel will be two Article III judges and one Article I judge.

All right?

That's the statute.

Now, why is that unconstitutional?

I cannot... it's very unusual, but I cannot think of any due process right of any Guam person who would be hurt, and I cannot think of... why it's wrong to ask an Article III judge to take on this additional adjudicatory function with an Article I judge sitting next to him.

It's purely adjudicatory.

It's not handing out radio licenses.

It's not doing anything else that's unsuitable to a judge.

Why not?

That's the merits of the question, and I'm not saying it has an obvious answer, but I want to hear your answer.

Mr. Green: I'm going to give almost the same answer that... that we would give as to... as to our claims.

It violates the Appointments Clause.

Justice Breyer: The Appointments Clause which wasn't even raised in the reply brief.

I mean, that... that's... or in the cert petition.

Is that all?

If it's not the Appointments... I'll go look at that.

Sorry.

I just hadn't... I was... I was... thought you were going to say something about the structural Article III problem.

Mr. Green: Well, I'm going... I'm going to there as well--

Justice Breyer: Okay.

Mr. Green: --and... and say that... that if the judge was an Article I judge, that... if that judge had lifetime tenure, then we would be back in the realm of Glidden again, trying to decide whether that court was actually an Article III court.

Justice Breyer: No, no.

I say why... why do you have to... the Ninth Circuit is an Article III court.

Mr. Green: Correct.

Justice Breyer: My statute says that for purposes of hearing an appeal from Guam, two... the Ninth Circuit hears it.

The panel shall consist of two Article III judges and one Article I judge.

Okay?

Now, I want to know what in the Constitution forbids that statute.

I'm not saying it's obvious one way or the other.

I want to know.

And it won't help just to say it forbids it.

I want to know why it forbids it.

Mr. Green: It... it forbids it because of the special nature of Article III courts.

The Court has frequently noted that Article III courts are independent.

They have constitutional independence.

They have constitutional salary protection.

Article I judges are not independent in the same way.

Justice Scalia: But this statute, in effect, says... if... if you take that position, the statute, in effect, says, we don't want an Article III court.

Let's... let's concede that with... with the one Article I judge sitting on it, it ceases to be an Article III court.

But that... the statute says that.

What's the matter with that?

Mr. Green: Well, we said in our brief that if Congress were acting to... in accordance with its plenary power, which... as I think Justice Breyer's hypothetical poses, that might well be constitutional.

I think there--

Justice Souter: So... so that if Congress said, all right, we're going to have appeals from the territorial courts in a court consisting of one territorial judge and two Article III judges, however selected, no problem with that constitutionally.

Right?

Mr. Green: --I... I think that is a very difficult and open question, and I... and I think there might be a constitutional issue if we to back to Crowell v. Benson, and... and Crowell's reaffirmation in... in Northern... or rather, Thomas.

There is a significant issue as to whether you can have territorial judges exercising precisely the same kind of almost Article III jurisprudence that district... regular Article III district judges have and... and not have some sort of Article III review from that.

Justice Souter: So you... you would... you would have the same problem if Congress said we're going to set up an Article IV court of appeals consisting of three Article IV judges.

You'd have the same problem?

Mr. Green: I think that... that claim can be made, as I say, on the basis of Crowell and... and on the basis of Thomas.

Justice Souter: Well, the claim can be made, but I mean, would you make it?

Do you think that is a sound claim?

Mr. Green: I think... I think I would make it and I think I would make it for the following reasons.

Precisely because, as Justice Ginsburg points out, these Article IV judges, in trying cases and interpreting Federal law, are certainly doing the same kinds of work, exercising the judicial power--

Justice Souter: Yes, but you could make the same argument about trial judges and... and Article III district judges.

They're doing the same kind of work.

They're subject to the same pressures and the same concerns, and if it's okay for the district court, why wouldn't it be okay for an appellate court?

Mr. Green: --Well, I... there is certainly Article III review.

I'm not sure that... that Article III review has been constitutionally mandated in that sense.

But where there is no Article III protection in the first place with respect to... to judges who are exercising that authority at the trial court level, Crowell v. Benson and I think Thomas indicate that... that there is a... there is an open question at least as to whether Article III review is mandated.

And this Court said the same in Guam v. Olsen on... on precisely the same issue.

I'd like to reserve the remainder of my time for rebuttal.

Argument of Patricia A. Millett

Chief Justice Rehnquist: Very well, Mr. Green.

Ms. Millett, we'll hear from you.

Ms Millett: Mr. Chief Justice, and may it please the Court:

There is no dispute in this case that a statutory violation occurred, and there's also no dispute that no challenge was made to that violation below.

The narrow question presented is whether these individual defendants are entitled to reversal under the plain error doctrine--

Justice Stevens: May I ask you a question at the outset?

And actually two questions.

Some years ago I was in London, and I was asked to sit with a British court on the bench.

And I... I didn't do it, but I often thought, well, I wonder if they would have let me participate in the decision.

Supposing here, instead of the Article I judge, you had a British judge and they asked him to sit.

That would be one question.

Would that make it a different case?

And secondly, what if they asked the President of the... of the Guam Bar Association to sit as a third person on the panel?

Would that make any difference?

Ms Millett: --The... there certainly would still be a statutory violation in those cases absolutely.

Justice Stevens: Yes.

The same statutory violation you have here.

Ms Millett: Absolutely.

Justice Stevens: And would you just say that's harmless error?

Ms Millett: Well, plain error I think is--

Justice Stevens: Plain error.

Ms Millett: --a higher standard.

I certainly hope someone would object, but if they don't and assuming that it's a case coming out of the territory again, then we would go back to the same analysis and say whether... could Congress create... if Congress could create a court that consisted of two judges and Guam--

Justice Stevens: They could create a court with two judges and a British judge.

Ms Millett: --and a lawyer--

Unknown Speaker: Let's assume they could do it.

Justice Stevens: --Yes.

Unknown Speaker: But with the statute we have now--

Justice Stevens: Yes.

--what would you do in that case that I asked you?

Ms Millett: The... I think our position would be the same as it is here.

Justice Stevens: That would be perfectly okay.

Ms Millett: I'm putting aside any sort of due process concerns that might apply--

Justice Breyer: Well, wait.

Justice Scalia: Well, that-- --To get... to get due process, you... you get to... you get to that portion of the plain error doctrine which says plain error applies if it seriously affects the integrity or fairness of the proceeding.

And if you have the President of the Guam Bar Association sitting on the court, doesn't that seriously affect the fairness of the proceeding in a manner that... that having a... an Article IV judge does not?

Ms Millett: --Well, in American Insurance Company versus Canter, which was opinion by Chief Justice Marshall at the beginning of this Nation, dealing with territorial cases, it addressed there a court that consisted of a lawyer and five... I'm sorry... a notary and five jurors in a territory--

Justice Kennedy: But that... but that didn't... that was not a court which in... in other parts of its duties was not an Article III court.

You're saying that you can become an... be an Article III judge one day and Article IV judge the other day.

Or an Article III... I should say an Article III court one day, an Article IV court the next day.

There's simply no authority for that proposition that I know of.

Tell me if I'm wrong.

Ms Millett: --Justice Kennedy, I think there are difficult constitutional questions that would be raised if Congress were to prescribe this.

I think based on the analysis in our brief, it is a statute we could defend.

But there would be difficult constitutional questions if that happened.

What happened here was a mistake, not a confrontation between the branches with Congress trying to change our--

Justice Kennedy: Well, but your position is there... there could be a waiver.

I thought your answer to Justice Stevens was that the parties could waive.

Suppose... suppose that we issued this decision and... and your position prevails.

Everybody agrees that this appointment should not have been made.

What's to prevent the Ninth Circuit from just asking the parties to please waive their rights under this case?

Ms Millett: --I think, Your Honor, what would prevent them is a decision from this Court declaring limitations on their statutory appointment power.

And if this Court... and if the Ninth Circuit--

Justice Kennedy: No.

They waive that.

But suppose the parties waive it.

Ms Millett: --And if... and if the Ninth Circuit were to engage, which is not to be presumed by governmental officials, court or executive... but were to engage in some pattern of violating the statute, I think this Court's supervisory authorities could take care of that.

But in an individual case like this, where there was no assertion of the right, this question would still be the same.

Did plain error occur that affected the substantial rights of these particular defendants?

Justice Breyer: Yes, but the interesting case under... leave plain error out.

I mean, you may be right on the plain error.

Ms Millett: I hope so.

Justice Breyer: But there is, I think, in Justice Stevens' question a very important implication.

To get the due process part out of it, assume that the people in front of the court are not American citizens.

Indeed, assume it's Judge Wald going to be appointed to the International Court.

Now, there's no due process problem.

So can the Congress appoint a sitting Federal judge to go to a foreign place where it's perfectly all right with the foreign people and hear their case?

Now, I'm not sure.

But that's, I think, what they're arguing is at issue here.

Ms Millett: I--

Justice Breyer: Not a due process problem--

Ms Millett: --Yes.

Justice Breyer: --but a question of what kind of function you can give to a sitting Federal judge because, after all, we have our two sitting Federal judges in the Ninth Circuit.

They went out to Guam, in principle.

They constituted themselves a different sort of tribunal, including the Article I judge, and no one claims that was unfair to anybody in Guam.

So there's no due process problem.

Now, what's the answer?

Ms Millett: I think, Your... Your Honor, that... that we would defend that statute, and we think that it would be permissible, assuming... I mean, the... a better way to approach it is that the analysis that would be applied would be as this Court did in Mistretta versus the United States.

And you would focus on... and a number of cases.

You would focus on what is the nature of the job that's being imposed.

It's a judicial function.

It wouldn't be asked to do some sort of Article I function.

And would doing that function so distract or withdraw from the burden... I'm sorry... distract or interrupt the judge's... or court's ability to function as an Article III court.

That would be the analysis.

Now, to... to put a finer point on it, in fact... and the reason I have to take the position it would be okay, is Congress has enacted a statute, 28 U.S.C. 297, which authorizes judges of the Ninth Circuit to go sit in the Freely Associated Compact States, which is Micronesia and the Marshall Islands, which are not--

Justice Kennedy: But that... but that... you're... you're... there are two questions.

One is can an Article III judge go to another court.

That's not this case.

This case is whether a non-Article III judge can go to an Article III court so that the Article III court is on some days an Article III court and some days not an Article III court.

I... I assume that the law of the circuit is something the Ninth... Ninth Circuit is proud of.

Is it going to now have under... under your theory an... an asterisk by the opinions that are written by non-Article III judges so that that's not so much the law of the circuit?

I mean, this... this is the problem: what happens to the court, not what happens to the judge.

Ms Millett: --No, I understand, Justice Kennedy.

There are two points to your question.

I would like to get to them both.

The first is, would it violate the Constitution to... does it violate the Constitution to have someone who's not an Article III judge sit with the Ninth Circuit on a given day?

And our position is that Congress could do it and that we would defend that statute based on the analysis I gave--

Justice Kennedy: So you think Congress could... could authorize a State superior court judge to sit on this Court?

Ms Millett: --No, not on this Court.

I think this Court has unique status.

The Supreme Court has unique status under the Constitution.

There shall be one Supreme Court, and its composition is specifically defined by Article I and nobody in Congress has any authority or power to change that.

But if you're talking about the territories, could Congress say they have no right to appeal at all?

Yes.

Could Congress say your appeal will be within the limit... as long as it doesn't violate due process or a fundamental right, will be to three State court judges?

Yes.

Now, the more difficult question is, could you have the combination as we had here?

And we think under the analysis of United States versus Mistretta, that would be okay, but in... in particular, as to territorial residents.

But even if it's not--

Justice Kennedy: But, again, Mistretta involved the assignment of a judge to a commission.

It didn't involve the delegation of duties to a court.

And that's what you're... and that's what you're saying, and that's quite different.

Ms Millett: --Yes.

Justice Kennedy: Under your theory... forget the Supreme Court... the Ninth Circuit could, if it was authorized by Congress, have a visiting State court judge every day as the visitor of the day.

Ms Millett: At least in territorial cases.

Justice Kennedy: And that would not impair its Article III character.

I... I just find that very difficult to believe.

Ms Millett: Well, Justice Kennedy, the way we get to this position is two steps.

Is first... there isn't, obviously, clearly on point, but if you add Mistretta to Morrison versus Olson, which had a delegation of non-Article III functions to... to... that's the... the independent counsel case... to the special division that appoints the independent counsel... and so you combine that and you combine that with the precedents on sharing of power with magistrate judges... those together... and then add to all of that the very limited constitutional rights to... to a particular form of tribunal accorded to people in the territories.

But I also wanted to get back... we think that it could be defended.

But even if the answer is no, we don't think the constitutional violation would be plain error.

But to get back to your binding precedent point, which I think is an important one, it's... there's three things to keep in mind.

First of all, whether this is a binding precedent or not has absolutely no effect on the claims of these individual defendants.

Their position would be the same if the decision were unpublished.

And I think the Ninth Circuit has itself in a difficult position here.

It should address, in the first case, the power of this precedent.

And it's not an issue this Court has never considered.

In Glidden... the Glidden Company case, the two concurring Justices specifically said... they... they agreed that the court was competent at least... it was an Article III court... after... at least after Congress had passed the statute giving them that status.

But if those two concurring Justices, which provided the most narrow ground for decisions in that case, specifically said that they would think... they would uphold the validity of those decisions that were issued prior to Congress' action.

And I think this Court's de facto officer doctrine would speak to whether unchallenged... unchallenged opinions should at some point have--

Justice Ginsburg: Ms. Millett, I'm surprised at the answers that you're giving, that they're not prefaced by what you said... I thought you said... in your brief which was that Congress did not enact a statute that allowed the Ninth Circuit to include one of these judges.

The Court shouldn't speculate on the constitutionality of a different statute.

The statute that Congress, in fact, enacted said that it was wrong to include this judge, and so the only question should be what is the consequence of the Ninth Circuit having failed to follow the statute that Congress enacted instead of speculating on, oh, suppose Congress had, in fact, enacted... enacted such a statute.

But you... you seem to be engaging in the... the hypothetical statute that Congress didn't enact to determine whether it would be constitutional.

Ms Millett: --Well, Justice Ginsburg, we absolutely agree.

I was trying to be responsive to questions that were posed.

But we absolutely agree that this is not the appropriate case to address limitations on congressional power over appellate review in territorial cases.

Justice Kennedy: Well, I think it's... I think it's sometimes not unusual for us to put a hypothetical case to test your proposition.

And the proposition we are testing is whether there is a structural deficiency caused by a territorial judge sitting, either by accident or on purpose, if... if there's such a... a structural impairment of its constitutional role, of its constitutional integrity that there must be reversal.

Unknown Speaker: And the hypothetical is just simply designed to... to illustrate the point.

Ms Millett: Right.

Well, Justice Kennedy, if we're talking about now reversal under the plain error doctrine, then the types of structural errors in which this Court has found reversal to be appropriate under the plain error doctrine to violate substantial rights or even to make harmless error analysis inapplicable have... is a very narrow, small class.

And those are... those are errors--

Justice Kennedy: I... I agree with you that that's... that that's a hard point in... in the case.

Let me ask you.

Do we focus just on the rights of the... of the litigant in this case?

Or is it appropriate for us to consider the constitutional integrity of an Article III court?

In other words, suppose we thought there was damage to the court, not necessarily to the litigant.

Can we take account of that in the plain error--

Ms Millett: --The... the fourth prong of the plain error analysis is whether the... the error seriously affected the fairness or integrity of judicial proceedings, which would seem to be responsive to... to your concern, and that would be the appropriate place to put it.

But I think it's important to understand that... that the types of errors that are deemed structural under the plain error... I'm not talking about structure under Article III... are things that go to... and I think that would satisfy prong four... are things that go to whether the court essentially functioned as a court.

Does it... is it consistent with the basic precepts that underlie our judicial system?

Was there race discrimination?

Was it a public trial where they completely denied--

Justice Stevens: --But your position, as I understand, is this... this right can be waived, and I'm not quite clear on why... supposing we decide with you in this case, why next month the Ninth Circuit might go back and ask for written waivers from all the lawyers in Guam for... to repeat the process and put on the president of the bar association as the third person on the panel.

Why couldn't they do that?

Ms Millett: --Well, Justice Stevens, we're asking this... in theory that could happen, but I think we're asking this Court to decide this case on the assumption that judges, like executive officers, attempt to comply with the Constitution and don't intentionally defy rulings of this Court or statutes--

Justice Stevens: Well, they're complying with the rule--

Justice Souter: --No, but if it's--

Justice Stevens: --if there's... if there's a... a waivable right there, and they say we think it's in the interest of harmony between the judges and lawyers in the Ninth Circuit to let one of the lawyers sit with us and see how we work here a couple of times.

Ms Millett: --But... right--

Justice Stevens: And they're going to do this.

Ms Millett: --But, Justice Stevens, before this Court would address whether it's waivable, it would say whether it's wrong.

This is isn't that something that was just--

Justice Stevens: Well, you've already admitted it's wrong.

Ms Millett: --Right.

And so I think it's one thing to have a right that... that is... that is, you know, parties can do with one way or the other and the statute or the law doesn't speak to it.

But where this Court... if this Court were to agree with, I think, both of this in this case that this was wrong, that I don't think we would presume that the Ninth Circuit is going to go... keep doing... and... and the Justice Department isn't going to defend it.

Justice Souter: No.

But it's wrong only if you cannot waive it.

In the... the hypothetical is that... that the waiver is right up front, that the person says it would be wrong without the waiver, but I waive.

Ms Millett: No, Justice... Justice Souter.

I think you can have errors that are wrong, but the question is whether in... in... by not objecting to that, they're entitled to relief.

That's different--

Justice Souter: No, but the... the question I--

Ms Millett: --than whether it's a right they can waive.

Justice Souter: --Excuse me.

But I think the question was why will this not... this practice not be perpetuated if it is waivable.

It is not an answer to that to say that... the other courts will not gratuitously engage in unconstitutional action because, if the waiver is effective, there's no unconstitutional action.

So it seems to me that on your position you have to face the fact that if it's waivable, it can properly happen again if there's a waiver.

Ms Millett: No, Justice Souter--

Justice Souter: Okay.

Let me... let me--

Justice Breyer: --The same--

Justice Souter: --hear that with... with what my follow-up question was going to be.

And you can answer them both.

Justice Stevens: Why... instead of getting into waiver, why don't we say, under the plain error doctrine, look, everybody agrees that it was wrong?

Justice Souter: Everybody agrees that it was plain.

And there is, in fact, a serious question about the integrity of the court when the composition of the court is simply illegal.

And so, if you want to stick to waiver, I don't know what the answer is to Justice Stevens' problem.

The... the alternative to waiver is to face the fact that there's something seriously wrong with a court which is unabashedly illegally constituted.

Ms Millett: --Justice Souter, when we're talking about waiver here, we are talking about something that is unconstitutional, just like someone could waive their... can waive their right to an Article III tribunal, but if Congress passed a statute that violated it, it would still be unconstitutional for the court to sit in that manner.

We don't think this is an unconstitutional issue.

But waiver is not the same as it's something the parties can freely take or drop because you have to go back and... to the step before that and say this is wrong and it won't be done and it shouldn't be done.

But if we assume that... we're... we're in the context of plain error analysis here.

That's why the concept of waiver is being discussed.

It's not whether a mistake was made or whether these people have the right freely to choose.

They don't, under the statute, have the right freely to choose what the composition of the panel will... will be.

We agree with that.

But when no objection was made below, proceedings were completed, an appeal was completed without any objection, they fully and freely participated in that, and it was only after the outcome that they turned around to challenge the... the composition of their court, that's an important value too.

Justice Stevens: It seems to me the waiver would be stronger if it were in advance instead of afterwards.

I'm positing a case where everybody agrees in advance we'll let the... we'll let this director of tourism of our... of Guam participate as a judge today because that will help the image of the court and so forth.

Everybody agrees we'll let them try it.

Why isn't that waiver more--

Justice Kennedy: --The question isn't--

--more binding than the one we have here?

And... and Justice Stevens' question is important because this case has consequence... consequences and it tells Congress what might be done.

Congress might say, well, we won't put this burden of waiving a statutory right.

We'll take away the statutory right and say that Article... that... that Article IV judges, territorial judges, can always sit on Ninth Circuit opinions involving Guam.

That's... that's why we're testing whether or not there's a structural error in what occurs here.

Ms Millett: And I think this Court's clear rules are that constitutional questions should not be decided unnecessarily.

And it's not necessary to resolution of this case to say what would happen if there was a full decision by Congress to enact a statute to make it... to engage a confrontation between the branches and to analyze whether that would be appropriate--

Justice Kennedy: Well, I thought--

--But... but it is important because you're saying that it's just a statutory right.

Ms Millett: --And even if it's--

Justice Kennedy: And I'm... and I'm suggesting that it might be more than that.

Ms Millett: --And... and our position will be even... we don't think it's a constitutional violation not because of what Congress can do or not do, but because even if it violates Article III, that's no injury to people who have--

Justice Kennedy: Right.

Ms Millett: --no Article III protections.

Justice Breyer: Clearly is no due process problem.

I'm mixed up now.

Ms Millett: Mm-hmm.

Justice Breyer: Suddenly we're talking about waiver.

Maybe I put that in as a... it's a kind of red herring.

It's not a question of waiver.

It's a question of whether this is plain error which turns into a question of does it seriously affect the fairness, integrity, or public reputation of judicial proceedings.

Now, I take it in all these hypotheticals where the Ninth Circuit is deliberately, which I don't think they'd do, defying a congressional statute, getting everybody to have waivers on the record, which are totally contrary to what Congress said, that it would seriously interfere with the integrity.

But in a case where nobody even thought of the issue, where they raised it a lot later, it's all come up by accident, et cetera, and... that maybe it wouldn't interfere with the public reputation.

So what has waiver to do with it?

Ms Millett: That... no, I... thank you for saying much more articulately than I've been able to what... what our point is about waiver versus plain error.

And I think that's exactly right.

And does... does this affect the judicial... judicial integrity has to be analyzed in the context of these individual defendants.

The decision should not be if this particular error occurred writ large across the Nation by courts, would it violate judicial integrity--

Chief Justice Rehnquist: Well, in the--

Ms Millett: --as to whether this--

Chief Justice Rehnquist: --in... in our Fulminante case, I think we held that even structural error was subject to harmless error review, that it was not simply an automatic reversal.

Ms Millett: --Absolutely, Mr. Chief Justice.

And there... the... the types of things that are not even subject to harmless error are not whether a mistake was made under Article III.

In fact, in Ex parte Ward, this Court under the de facto... de facto officer doctrine sustained the actions of the... of a recess appointment judge.

But the question is whether it's something that essentially means this wasn't functioning as a court.

It is that profound.

This is inconsistent with our--

Justice Ginsburg: May I... may I ask you a very practical question that... this case is now here.

So it has gotten some notice.

What is the Ninth Circuit currently doing with respect to panels that review decisions from Guam, from Samoa, from Northern Marianas?

Is the Ninth Circuit continuing to use territorial judges to fill out their panels, or has it stopped doing it?

Justice Scalia: Please don't tell us that they're asking for express waivers.

Unknown Speaker: [Laughter]

Ms Millett: --I'm grateful to say that we at least don't know of that if they are doing it.

But as far as we know, this... this was an isolated incident.

The Ninth Circuit sat in the Northern Mariana Islands just last month, February, and had a full complement of Article III judges.

It had never happened... it had happened back in the '50s, but it--

Justice Ginsburg: It seems it couldn't be pure accident because the... the Chief Judge of the circuit would have to designate that judge.

So that was an advertent act that she designated this territorial judge.

Ms Millett: --No, there's no doubt.

And there's no doubt that... that a conscious decision to appoint this judge was made, but I think the question went to whether... as I understood it, went to whether there's an ongoing problem or a policy.

Justice Ginsburg: Right.

Ms Millett: There is no policy that we're aware of of doing this.

It hadn't happened for 50 years.

It hasn't happened since this Court granted certiorari.

No reason to think it... that they're going to do it, at least until this Court rules, and on the assumption that this Court will agree with both parties in this case and tell them that it is wrong to do that, that it won't happen again.

And that's--

Justice Kennedy: Well, we don't usually talk about a statutory violation as being something that's immoral.

It's just a violation of the statute.

Ms Millett: --It's wrong.

Justice Kennedy: But it's wrong without a waiver.

Ms Millett: No, I think--

Justice Kennedy: So that doesn't decide much in my view.

Ms Millett: --With respect, Justice Kennedy, it's not that it's... it's right with a waiver.

It is still proscribed by statute.

It is still unlawful.

The... the waiver issue is only whether when the... when an objection wasn't made, are... are the defendants entitled to the extraordinary relief of plain error.

That's not a routine type of waiver.

That is... is it was wrong.

We all know it's wrong, and... and... but do these... does it... did it really hurt the interests either of these defendants or, in this particular proceeding, did it offend judicial integrity.

And we think because of the narrow context in which this was decided... it was a territorial case... to have a territorial judge sitting with two Ninth Circuit judges, statutorily wrong... maybe there's debate about whether it would be constitutionally permissible.

But it did not make this no longer a court.

It did not rise to the level of race discrimination or total--

Justice Souter: Well, Ms.... Ms. Millett, may I interrupt you there?

I mean, you have said... and... and I understand what you're getting at.

That does not make this no longer a court.

But in... in a way that sort of begs the question because the one thing that is plain is that this so-called court is not the court that the statute calls for.

So far as the statutory definition of the appropriate court to hear this appeal, this court is illegally constituted.

And don't we... even if we confine our concern to this one instance, don't we have a reason to find that that fact does go to the integrity of the proceeding for the purposes of the plain error rule?

Ms Millett: --No, Justice Souter.

Our position is that it would not because you had a quorum of Ninth Circuit judges here, and a quorum is sufficient under 28 U.S.C., a quorum of two on this panel, to decide--

Justice Souter: Yes, but the quorum assumes that you've lost one who was also an appropriately constituted member of the court.

And you haven't, so--

Ms Millett: --I'm not going to argue that this type of error is not what Congress was anticipating in the quorum provision.

But it's not that far, if you think of what happens when a panel sits and then a judge recuses himself after argument, once the case is submitted.

And so they have participated.

Their... obviously their name would not be on the opinion.

That would be one distinction.

But the fact that the judge sat there and participated and could have had some influence... it would be unknown... would not go to the power of the court to act.

And this Court has made the distinctions in Ex parte Ward, four Justices in the Freytag, and as far back as Martin versus Hunter's Lessee, the power of the court to act, the Ninth Circuit to act with a quorum here, is to be distinguished from the lawfulness which... with which they acted.

In Ex parte Ward, a... a recess appointment Federal judge, who lacked tenure, by... by definition lacked salary guarantees, sat.

Justice Souter: --Mm-hmm.

Yes.

Yes.

Ms Millett: And this Court said that this court, whichever district court it was... I forget, I'm sorry... had jurisdiction.

The wrong person being there exercising it goes to the lawfulness with which the court acted.

And so I think because we had a quorum here, the Ninth Circuit had power to act.

It acted unlawfully in the exercise of that power, but--

Justice Souter: So long as it... but... but if... if power to act is the criterion, then your answer would have to be the same if the director of tourism had been substituted in this case because the power of the Ninth Circuit would be there to act, a quorum of Article III judges would be sitting, and... and so I take it your answer would have to be the same.

Ms Millett: --My answer on jurisdiction would be the same.

My answer on... on the--

Justice Souter: No, but I thought your answer to the plain error question of integrity was essentially an answer that relied heavily on jurisdiction.

And the jurisdictional answer was, this is the Ninth Circuit.

It has power to act.

There's a quorum of Ninth Circuit judges.

And that would be the... that would be the same if the third member were not an Article IV judge but had been the director of tourism.

Ms Millett: --To clarify, Justice Souter, I was talking specifically about power.

On prong four, I think we would have a much harder row to... row to hoe if we had to show that it did not affect integrity to have a director of tourism sit on a panel, but we--

Justice Souter: Well, I... I agree--

Ms Millett: --But--

Justice Souter: --but... which is simply to say there are other concerns than the jurisdictional concern.

Ms Millett: --Right.

Right, certainly prong four goes far beyond jurisdiction.

But what makes this not offend judicial integrity is that territorial residents who have no right to an Article III compliant tribunal had their case heard by three Federal judges.

It was heard fairly.

They had no disqualifying constitutional due process biases.

They rendered a unanimous decision on overwhelming evidence in the face of highly discretionary challenges.

And so... and... and you have combined with that what Justice Scalia referred to in discussing with... with counsel for petitioner, the... the counter-concern that there's a judicial integrity problem with allowing people to proceed before a court and then wait until there's an adverse outcome to challenge who it was that rendered that decision.

And so taking all of those factors together in the particular, peculiar context of territorial residents, we don't think this offended judicial integrity or the reputation of these proceedings.

They had three judges, not a judge and a layperson, not a judge and a child.

They had three judges.

There was no unconstitutional bias.

There was full consideration of their arguments.

They had every opportunity, if they didn't want this panel, to raise an objection, but they didn't.

They took it.

They went with the judgment, and it's now, under the plain error doctrine, I think too late in the day to object to the composition of the panel.

Justice Kennedy: Given how small the community is, the bar is, in Guam and the Northern Marianas, it puts counsel in a somewhat difficult position for the judge to say, oh, do you mind if I sit on this case even though I'm not qualified.

So I... I'm not sure the waiver was all that voluntary.

There's nothing in the record on the point.

Ms Millett: Justice Kennedy, I think defense counsel are frequently... had to... have to make difficult decisions.

They have to decide whether they want to alienate the jury by objecting to evidence.

Do they want to alienate the judge by seeming too obstreperous?

Do they want to seem like they're hiding something from the jury?

They have to make these difficult decisions, but the whole point of an adversarial system is that defense counsel is charged with doing that and you have to strike balances.

And if on balance they decided, which I don't think counsel should think about their own reputation in defending their clients, but if they decided it would be better not to make the panel angry, I'm not going to object, that's a strategic choice that they've made.

But at the same time, they may have made the decision, this is a good panel for us.

We don't know.

There's nothing inherently prejudicial.

Unlike most harmless error or plain errors where it's inherently prejudicial to a defendant to admit a confession or suppress evidence about the circumstances of the confession, there's nothing inherently prejudicial ex ante, up front about a particular judge sitting.

And so there's important--

Rebuttal of Jeffrey T. Green

Chief Justice Rehnquist: Thank you, Ms. Millett.

Mr. Green, you have 3 minutes remaining.

Mr. Green: This case was not decided in that kind of narrow context.

It is not the case that court of appeals from... or decisions of the court of... the Ninth Circuit Court of Appeals from Guam or the Northern Mariana Islands are narrow decisions, or somehow limited.

In Cruz versus the United States, the Ninth Circuit decided a question about the transportation of firearms in interstate commerce and... and created a split on the basis of a Guam appeal with the Sixth Circuit.

Judge Munson, in effect, would be deciding cases that would apply to district judges in Montana.

I... I think that is, in part, answer to your question, Justice Breyer, about the... about the Article I judge.

With respect to--

Justice Ginsburg: Why isn't the answer to that you just treat them like unpublished decisions?

They have no precedential value.

Mr. Green: --I think actually the Ninth Circuit couldn't do that because of its Article III nature.

I... I think that would be a... an exceedingly odd thing to do for the--

Justice Ginsburg: But Article III courts do issue unpublished... quote, unpublished.

Of course, they are published, but non-precedential.

Mr. Green: --That's true, but we know the issue of... of unpublished decisions is... is changing, and nonetheless there may be some knowledge, intra-circuit knowledge, about how these issues were treated.

These judges are, as we discussed earlier, interpreting Federal law.

This was a case about laws that arose from... from 18 U.S.C.--

And, Justice Souter, I would point out that with respect to integrity here, I... I think it would be... it would have more integrity, oddly enough, for the court to have sat with the director of tourism of Guam.

Now, I say that because Judge Moore points out in his amicus brief that... that he is open to attack on the ground of whether he's impartial to the Government.

And... and here Judge Munson was sitting on a case in which the Government was the opposing party.

I would add too that this is the kind of case where the Court can... can articulate a high wall, a bright line for Congress.

When Congress vests jurisdiction in an Article III court, that means Article III review.

That decision or that principle is implicit in Glidden, and this case represents the missing piece of that puzzle.

If there are no further questions.

Chief Justice Rehnquist: Thank you, Mr. Green.

The case is submitted.

Transcript: 

Argument of Justice Stevens

Mr. Stevens: I also have the opinion to announce in a case called Khanh Phuong Nguyen and Tuyet Mai Thi Phan against the United States has come to us from the Island of Guam.

This also is a case from the Ninth Circuit.

The petitioners were tried, convicted, and sentenced to lengthy prison terms on federal narcotics charges in the District Court of Guam.

They appealed to the United States Court of Appeals for the Ninth Circuit.

The panel that was convened to decide their appeals included two judges of the Ninth Circuit who are life-renured Article III Judges and also Chief Judge Munson of the District Court for the Northern Mariana Islands who sat by designation.

That Court like the District Court of Guam is not an Article III Court but an Article IV Territorial Court.

Unlike an Article III Judge who enjoys life tenure and may remain in office during good behavior, a judge of the District Court for the Northern Mariana Islands serves for a term of ten years and the President may remove him from office for a good cause.

Before argument of their appeal, petitioners made no objects to Chief Judge Munson’s inclusion on the Ninth Circuit panel.

After the Court of Appeals affirmed their convictions and sentences, however, petitioners sought writs of certiorari presenting the question whether the decision of the Ninth Circuit should be invalidated because of Chief Judge Munson’s participation in the consideration and decision of their appeal.

We granted certiorari and for reasons stated in an opinion filed with the Clerk we vacate the judgments of the Court of Appeals.

Section 292(a) of the Judicial Code permits the Chief Judge of a Circuit to assign one or more district judges within the Circuit to sit on the Court of Appeals whenever the business of that court so requires.

Although, the Chief Judge of the District Court for the Northern Mariana Islands is literally a “district judge” of a court within the Ninth Circuit, it is perfectly clear that his designation to the Court of Appeals was not authorized by statute.

Other provisions within Title 28 together with historical usage demonstrate that the term "district judges" as used in Section 292(a) refers only to those judges who enjoy the protections of Article III.

Accordingly, the Ninth Circuit Panel that included Chief Judge Munson was improperly constituted.

In our view, the defect in Chief Judge Munson’s designation of the Court of Appeals was not merely technical but rather represented a breach of Congress decision to preserve the Article III character of the Courts of Appeals.

The presence of a quorum of two otherwise qualified judges does not excuse the improper panel designation.

Although, the quorum statute has existed for over a century, we have consistently vacated the judgments of improperly constituted Courts of Appeals despite the presence of a quorum of competent judges.

It is highly doubtful that two Article III judges on the panel below and any authority deserve as a panel by themselves when the Court was not properly constituted in the first instance.

We, therefore, return these cases to the Ninth Circuit for a fresh consideration before a properly constituted panel.

The Chief Justice has filed a dissenting opinion in which Justice Scalia, Justice Ginsburg, and Justice Breyer have joined.