Justice SCALIA, with whom Justice O'CONNOR, Justice KENNEDY, and Justice SOUTER join, concurring in part and concurring in the judgment.
I agree with the Court that 26 U.S.C. § 7443A allows the Chief Judge of the Tax Court to assign special trial judges to preside over proceedings like those involved here, and join Parts I, II, and III of its opinion. I disagree, however, with the Court's decision to reach, as well as its resolution of, the Appointments Clause issue.
* As an initial matter, I think the Court errs by entertaining petitioners' constitutional challenge on the merits. Petitioners not only failed to object at trial to the assignment of their case to a special trial judge, but expressly consented to that assignment. It was only after the judge ruled against them that petitioners developed their current concern over whether his appointment violated Art. II, § 2, cl. 2, of the Constitution. They raised this important constitutional question for the first time in their appeal to the Fifth Circuit. That court concluded that petitioners had "waived this objection" by consenting to the assignment of their case. 904 F.2d 1011, 1015, n. 9 (1990). When we granted certiorari, we asked the parties to brief and argue the following additional question: "Does a party's consent to have its case heard by a special tax judge constitute a waiver of any right to challenge the appointment of that judge on the basis of the Appointments Clause, Art. II, § 2, cl. 2?" 498 U.S. ----, 111 S.Ct. 781, 112 L.Ed.2d 844 (1991).
Petitioners would have us answer that question "no" by adopting a general rule that "structural" constitutional rights as a class simply cannot be forfeited, and that litigants are entitled to raise them at any stage of litigation. The Court neither accepts nor rejects that proposal-and indeed, does not even mention it, though the opinion does dwell upon the structural nature of the present constitutional claim, ante, at 878-880. Nor does the Court in any other fashion answer the question we specifically asked to be briefed, choosing instead to say that, in the present case, it will "exercise our discretion" to entertain petitioner's constitutional claim. Ante, at 879. Thus, when there occurs a similar forfeiture of an Appointments Clause objection-or of some other allegedly structural constitutional deficiency-the Courts of Appeals will remain without guidance as to whether the forfeiture must, or even may, be disregarded. (The Court refers to this case as "one of the rare" ones in which forfeiture will be ignored, ibid.-but since all forfeitures of Appointments Clause rights, and arguably even all forfeitures of structural constitutional rights, can be considered "rare," this is hardly useful guidance.) Having asked for this point to be briefed and argued, and having expended our time in considering it, we should provide an answer. In my view the answer is that Appointments Clause claims, and other structural constitutional claims, have no special entitlement to review. A party forfeits the right to advance on appeal a nonjurisdictional claim, structural or otherwise, that he fails to raise at trial. Although I have no quarrel with the proposition that appellate courts may, in truly exceptional circumstances, exercise discretion to hear forfeited claims, I see no basis for the assertion that the structural nature of a constitutional claim in and of itself constitutes such a circumstance; nor do I see any other exceptional circumstance in the present case. Cf. Peretz v. United States, --- U.S. ----, ---- - ----, 111 S.Ct. 2661, 2677-2680, --- L.Ed.2d ---- (1991) (SCALIA, J., dissenting). I would therefore reject petitioners' sweeping proposition that structural constitutional rights as a class cannot be waived or forfeited, and would refuse to entertain the constitutional challenge presented here.