The Supreme Court doesn’t review a military justice case once in a blue moon — it does so once every three of four blue moons. So Denedo was significant simply for the reason that the Supremes were considering a military justice issue. And from CAAFlog’s perspective, the case was important because the Kabul Klipper finally got to award the Golden CAAF to a worthy recipient — Code 46. But the Denedo decision ended up being more significant than its unique fact pattern might suggest.
Denedo cleaved the Supreme Court 5-4, with Justice Kennedy joining the more liberal wing of the Court to deliver a majority. Justice Kennedy’s majority opinion and Chief Justice Roberts’ suggested two very different views of the military justice system. Interesting, the majority–which decided that CAAF did have the power to correct the system’s mistakes even after direct review was complete and the appellant had become a civilian–had the more positive outlook on the system. One might think that those who believe the system is unfair would think it most important to allow for correction of unfairness, but that wasn’t how the two competing camps saw the issue. Rather, Justice Kennedy celebrated the system’s fairness while offering the ability to correct its own mistakes as a sign of the system’s integrity. Chief Justice Roberts, on the other hand, trumpeted the “rough justice” that the system can sometimes deliver and indicated that those who signed up for the military shouldn’t expect more.
Chief Justice Roberts’ rhetoric seemed to cause discomfort for even some of his allies on the question of whether CAAF could issue a writ of error coram nobis after the conclusion of direct review. Judge Ryan, who had written a lengthy and forceful dissent arguing that CAAF had no such power, later used language in her Loving dissent that appeared to be a rejoinder to the Chief Justice. She wrote:
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 v. United States, 68 M.J. 1, 28 n.11 (C.A.A.F. 2009) (Ryan, J., dissenting).
Of course, three or four blue moons from now when the Kabul Klipper gets to award the Golden CAAF II, the SCOTUS lineup will be different. One member of the Denedo majority –Justice Souter — has already left the Court. And the tea leaf readers look at the number of clerks Justice Stevens has hired as evidence that he won’t return next Term. He, too, was in the Denedo majority. We have yet to see which camp Justice Sotomayor will join. And she may be just half of the new members of the Court who will determine which camp will be ascendant in the Court’s next military justice decision.