In his Denedo dissent, Chief Justice Roberts favorably quoted Judge Ryan’s criticism of DuBay haerings.  See United States v. Denedo, 129 S. Ct. 2213, 2229 (2009) (Roberts, C.J., dissenting) (quoting Denedo v. United States, 66 M.J. 114, 136 (Ryan, J., dissenting)).  And in her Loving dissent, Judge Ryan continues to be critical of DuBay hearings and the case that created them.  See Loving v. United States, __ M.J. __, No. 06-8006/AR, slip op. at 1-2 n.1 (C.A.A.F. July 17, 2009). But, interestingly, her dissent includes what is obviously a rejoinder to Chief Justice Roberts’ characterization of the military justice system in Denedo.

In his Denedo dissent, Chief Justice Roberts quoted the Reid v. Covert plurality for the proposition that           “[t]raditionally, military justice has been a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks.”  Denedo, 129 S. Ct. at 2225 (Roberts, C.J., dissenting) (quoting Reid v. Covert, 354 U.S. 1, 35-36 (1957) (plurality opinion)).  In her Loving dissent, Judge Ryan writes:

Whatever its beginnings, far from being a “rough form of justice,” Reid v. Covert, 364 U.S. 1, 35 (1957), the military justice system today, including this Court, generally provides “substantial procedural protections and provision for appellate review by independent civilian judges [to] ‘vindicate servicemen’s constitutional rights.'”  Hamdan v. Rumsfeld, 548 U.S. 557, 586 (2006) (quoting Councilman, 420 U.S. at 758).

Loving, No. 06-8006/AR, slip op. at 22 n.11 (Ryan, J., dissenting).

13 Responses to “Judge Ryan vs. Chief Justice Roberts”

  1. Anonymous says:

    I bet Justice Brennan didn’t care for CJ Roberts’ dissent or the citation of Reid v. Covert either. It’s rare that people across the spectrum agree on a badly-written opinion, but there we have it.

  2. H Lime says:

    CJ Robert’s lambasted comments which pithily, but ill-advisedly, describe “la difference” between the military and civilian systems–are no more representative of his dissent than J. Sotomayor’s career is by her ill-advised words.

    The justices–CJ Roberts, and more so the majority–didn’t understand the military justice system, and the Denedo opinion bears the scars. CJ Roberts’ misunderstanding of the MJ system was largely evidenced by generalities and broad strokes, which concededly have a firm but diminishing historical basis, yet inadequately describe today’s military practice; whereas the majority’s misunderstanding is evidenced by a failure to delve into the language and history of the statutory language itself.

    I’m not sure if it’s “people across the spectrum,” but I can count many, many military justice practitioners who are far more offended by the latter.


  3. Anonymous says:

    Do those “many, many military justice practitioners” inlcude anyone who didn’t work on the case on behalf of the government?

  4. H Lime says:

    Assuming that’s not a rhetorical question, yes, they do.


  5. Anonymous says:

    So you’re more offended that miiltary courts have coram nobis power, because they are courts and inherent in their power “to sit,” than you are at CJ Roberts’ talking all sorts of trash on MJ?

    That’s interesting.

  6. Anonymous says:

    Are you sure you’re not just offended that you lost?

  7. H Lime says:

    Oh snap! You’re right! I guess I wasn’t making a point, I was just being petulant. Why did I bother, knowing you’d be reading.

    I didn’t lose, the Government’s position lost. Lots more people took the Government’s position than me, Mr. Anonymous.


  8. Anonymous says:

    Legal analysis by majority opinion? That’s a novel approach. Not one based on any legal precepts I am aware of but guess that is why it is novel.

    I agree with the others, difficult to see why calling the military justice system “rough justice” and not simply calling it that but inferring that it’s A-OK because after all that’s what they signed up for is much less offensive than making the military appellate system more like the Article III appellate courts by giving them coram nobis power (which will be a rarity when it is used).

    Difficult to see why the later is, to use your word, offensive at all, to anyone. I can see why folks think it wrong. I am not sure what the right answer is, but offensive?

    Yeah, that’s a strong word and fairly out of place, so you shouldn’t be surprised when folks challenge your motivation given that as yet, you haven’t offered a reason as to why it would be “offensive.”

  9. Anon says:

    The CJ’s words will become important the next time that the Government argues “deference” to the military justice system – right!

  10. MJW1 says:

    Are the “deficiencies” in the CJ’s opinion a direct reflection on the failure of the SG’s office and those on brief?

  11. Anonymous says:

    well, umm, yes, that’s the point. Attorneys represent a client, whether it is an accused or the government. They don’t win or lose, their clients do.

  12. Anonymous says:

    Like the two different attorneys who had to say “I didn’t lose, Cossio did.”

  13. Anon says:

    What’s the policy on comments? What are the rules for whether a comment is deleted or not? Is there a privacy policy as to whether IP addresses are collected?