The Kabul Klipper writes below about concerns that yesterday’s SCOTUS opinion in United States v. Denedo will clip military appellate courts’ wings by limiting their authority to issue pre-appellate extraordinary relief. I disagree with my learned colleague. As the Kabul Klipper himself acknowledges in his post, Denedo looks backwards for jurisdiction because coram nobis is a backward-looking writ. It don’t think the opinion speaks to authority to issue writs of mandamus or prohibition; nor do I think military appellate courts will interpret the opinion aas precluding them from doing so.
An appellate court’s authority to issue such a writ is typically thought of as existing if a case potentially falls within the appellate court’s appellate jurisdiction. See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966). Here’s how the D.C. Circuit put it in a 2004 opinion: “Once there has been a proceeding of some kind instituted before an agency or court that might lead to an appeal, it makes sense to speak of the matter as being ‘within [our] appellate jurisdiction’ — however prospective or potential that jurisdiction might be.” In re Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004). The author of those words? Then-Judge Roberts.