Only since 1983 has the Supreme Court had statutory cert jurisdiction over CMA/CAAF decisions.  And since then, the Supremes have granted plenary review in just nine cases.  The last three (Denedo, Clinton v. Goldsmith, and Scheffer) were all cases in which the SG sought cert.  (And those are the only three instances in which the SG has sought a writ of certiorari to CMA/CAAF.)  Not since 8 November 1996 — 14 years ago — has the Supreme Court granted plenary review upon a servicemember’s petition for a writ of certiorari to CAAF.  Edmond v.  United States, 519 U.S. 977 (1996).  (There have been some other instances in which the Supreme Court granted a military cert petition, vacated CMA’s/CAAF’s ruling, and remanded the case for further consideration  in light of a newly announced SCOTUS opinion.)

The case that stands the greatest chance of breaking that 14-year losing streak is Smith v. United States, No. 10-18 — a cert petition boosted by both a pronounced circuit split and an all-star roster of counsel.  Those all stars have now filed their reply to the Solicitor General’s brief in opposition.  The reply is available here.  We’ll let you know as soon as we learn which conference the petition is distributed for.  And the Kabul Klipper will be putting bubble wrap on his shopping list.

7 Responses to “Reply brief filed in Smith v. United States”

  1. John O'Connor says:

    Smith v. United States? I think the Court should wait for a case with a more distinctive name to decide the circuit split.

  2. anonymous says:

    The case will be distributed for the November 23 conference: Opp. was filed Oct 28, clerk’s office must wait ten days before distributing, that means Monday Nov. 8, which is for the Nov. 29 conference.

  3. Anonymous says:

    Whoops, I meant Nov. *23* conference at the end of that last comment (as at the beginning of the comment). The decision will be announced on Nov. 29.

  4. huh says:

    If the standard of review is de novo on remand, how many CAAF judge votes will that actually affect? One at most? Granted, one is enough to change the result.

  5. Snuffy says:

    Don’t give up on U.S. v. Clayton.

  6. Marcus Fulton says:

    An article on the case on the National Law Journal site indicates Smith is the only Cadet to have ever been court-martialed in the 130-year history of the Coast Guard Academy. Could that really be true? Can anyone name another one?

  7. Anonymous says:

    The cert. petition cites a newspaper article in saying the same thing. So I guess it was true at least as of a few years ago. Not sure if there’ve been others more recently.