Thomas, J., concurring
between core private rights, on the one hand, and mere public rights and governmental privileges, on the other. “Disposition of private rights to life, liberty, and property” was understood to “fal[l] within the core of the judicial power, whereas disposition of public rights [was] not.” Wellness Int’l Network, Ltd. v. Sharif, 575 U. S. 665, 711 (2015) (Thomas, J., dissenting). Thus, “[t]he measure of judicial involvement was private right. In particular, the extent to which the judiciary reviewed actions and legal determinations of the executive depended on private right.” J. Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 Geo. L. J. 2513, 2516 (1998) (footnote omitted).[1] Even today, the distinction “between ‘public rights’ and ‘private rights’ ” continues to inform this Court’s understanding of “Article III judicial power.” Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___, ___ (2018) (slip op., at 6).
As I have explained, when private rights are at stake, full Article III adjudication is likely required. Private rights encompass “the three ‘absolute’ rights,” life, liberty, and property, “so called because they ‘appertain and belong to particular men merely as individuals,’ not ‘to them as members of society or standing in various relations to each other’—that is, not dependent upon the will of the government.” Wellness Int’l Network, 575 U. S., at 713–714 (dissenting opinion) (quoting 1 W. Blackstone, Commentaries on the Laws of England 119 (1765); alterations omitted).
- ↑ This also helps to explain why, in Marbury v. Madison, 1 Cranch 137 (1803), Chief Justice Marshall found it necessary to first determine whether Marbury was “entitled to the possession of those evidences of office, which, being completed, became his property.” Id., at 155 (emphasis added). Only once it was established that a vested property right was at stake did the Court determine the remaining issues. Marbury thus “stand[s] for the importance of private right.” Harrison, 86 Geo. L. J., at 2516, n. 10.
