CAAF’s opinion in Loving is subject to review by the Supreme Court because it grants extraordinary relief. If, however, CAAF had denied relief, it wouldn’t have fallen with the Supremes’ certiorari jurisdiction. This is just one example of how the Supremes’ certiorari jurisdiction is gerrymandered to generally favor the government.
The Supreme Court’s certiorari statute puts four kinds of military justice cases within the Supremes’ reach: (1) death penalty cases; (2) cases certified to CAAF by a Judge Advocate General; (3) cases in which CAAF granted a petition for review; and (4) “Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces granted relief.” 28 U.S.C. 1259. This fourth category can be translated to “cases in which CAAF has granted exraordinary relief.”
The government enjoys an enormous advantage under this jurisdictional scheme. EVERY CCA opinion that favors the accused can go to the Supremes if the JAG certifies it to CAAF. On the other hand, the many cases in which the CCA rules for the government but where CAAF denies appellant’s petition for grant of review cannot. See also UCMJ art. 67a (“The Supreme Court may not review by a writ of certiorari under this section any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review.”). The Supremes’ certiorari jurisdiction rule for extraordinary writ cases is also tilted toward the government. It is certainly true that the government is SOMETIMES (though very rarely) the petitioner in a military extraordinary writ case. Indeed, the case that established the CCAs’ extraordinary writ jurisdiction arose from a goverment petition. See Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979). But certainly the accused is the successful extraordinary writ petitioner far more often than is the government, while the accused is also an unsuccessful extraordinary writ petitioner far more often than the government. Under 28 U.S.C. 1259(4), the government can seek cert in almost every writ case it loses at CAAF (like Loving), while avoiding further review in almost every writ case it wins at CAAF.
There can be little doubt that this outcome was intentional. The DOD pushed for the Supremes’ certiorari jurisdiction over CMA cases in the Military Justice Act of 1983 because it was unhappy with many Fletcher-era CMA rulings, but had no practical means to challenge them. While an acccused who lost before CMA could often seek collateral review in the Article III courts, the government could not.
Certiorari review has not proven to be particularly beneficial to the accused in the military justice system. Ryder v. United States, 515 U.S. 177 (1995), appears to be the only defense victory among the cases that have gone to the Supremes for plenary consideration under 28 U.S.C. 1259 — and the relief in that case wasn’t meaningful (which may help to explain why the accused prevailed). I am aware of only one case in which an accused actually received meaningful relief as the result of 28 U.S.C. 1259 — United States v. Goodson, 22 M.J. 22 (1986) (per curiam), which the Supremes had GVRed for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984).
While expanding the Supremes’ jurisdiction may prove unhelpful to the defense in practice, it would eliminate the appearance of gerrymandering in the government’s favor. And to an individual aggrieved litigant, any chance of success if better than none.
This summer, the American Bar Association’s House of Delegates adopted a recommendation urging Congress to “amend 28 U.S.C. § 1259(3) and (4) to permit discretionary review by the Supreme Court of the United States of decisions rendered by the United States Court of Appeals for the Armed Forces that deny petitions for review of courts-martial convictions or deny extraordinary relief.” See generally http://www.abanet.org/crimjust/policy/am06116.pdf#search=%22american%20bar%20association%20equal%20justice%20for%20our%20military%22 (Report and Recommendation 116). And on St. Patrick’s Day 2005, Representative Susan Davis introduced H.R. 1364, the Equal Justice for Our Military Act, which would expand the Supremes’ certiorari jurisdiction over cases where CAAF denied extraordinary relief. It was referred to committee in April 2005, where it has apparently remained in hospice care since.
All of that said, I don’t think the S.G. will use the government’s gerrymandered cert jurisdiction to seek the Supremes’ review of the Loving decision. Loving seems to be a fairly straightforward application of Wiggins. The only issue that might even tempt the S.G. is whether CAAF retains extraordinary writ jurisdiction after the Supreme Court has affirmed the case but before the President has finally approved the death sentence. The number of cases that issue affects, however, is sufficiently miniscule that I don’t believe a cert petition is in the cards.