By adding “or denied” to 28 U.S.C. 1259(3), the Equal Justice for Our Military Act (full text of the bill available here) would allow the Supreme Court to grant certiorari in a case reviewed by a CCA but in which CAAF denied review. CAAF would no longer serve as the Supreme Court’s bouncer, keeping undesirable-looking characters from filing for cert. By adding “or denied” to 28 U.S.C. 1259(4), the bill would allow a cert petition to be filed where a petitioner unsuccessfully sought extraordinary relief from CAAF. Both of these, but especially the former, would be welcome changes to the military justice system. As Tumey v. Ohio, 273 U.S. 510 (1927), demonstrates, it is literally possible for any civilian convicted of unlawfully possessing intoxicating non-alternative beverages and fined $100 to take his or her case all the way to the Supreme Court. Yet a servicemember can be effectively barred from seeking Supreme Court review of serious cases resulting in lengthy confinement if CAAF denies his or her petition–as CAAF does in most cases. This legislation would fix that.
As we have explored in nauseating detail, if enacted this change would be unlikely to provide much — or possibly any — relief to accused in the military justice system. But servicemembers should have the same right to have their cert petitions denied that their civilian counterparts have. H.R. 3174, the Equal Justice for Our Military Acdt, is aptly named.