In an amicus brief filed at the same time as the Government’s response to the petition for certiorari in Akbar (CAAFlog case page),  University of Virginia School of Law professor Aditya Bamzai asserts that:

Marbury [v. Madison, 5 U.S. (1 Cranch) 137 (1803)] bars the Court from hearing this case. The provision that petitioner invokes (see Pet. 1) to establish certiorari jurisdiction, 28 U.S.C. § 1259, violates Article III, section 2, and Marbury’s holding by authorizing this Court to issue writs directly to executive branch officers.

Br. at 2.

The brief is available here.

6 Responses to “An amicus asserts that SCOTUS lacks jurisdiction to review CAAF decisions”

  1. Vulture says:

    Akbar should submit a Grostephon issue requiring the professor to comply with CAAF’s Amicus rules.

  2. Wahoowa says:

    Fascinating argument. However, I think the brief fails in not addressing why this can’t be characterized as a case “affecting Ambassadors, other public Ministers and Consuls,” which would give the Court original jurisdiction over the case. It does note that Marbury assumed (though without any discussion) that the request for mandamus against James Madison wasn’t such a case, but that was in the days when the particular name/form of a writ was much more important than it is now. A writ of mandamus was requested, so it was easy to say, in essence, this isn’t a case affecting the Secretary of State. But nowadays we don’t usually spend a ton of time on the form of a writ (Denedo aside)
    I could hypothesize a reason why this doesn’t fit–maybe there’s some historical evidence that “other public Ministers” was meant to apply to a specific group of folks that doesn’t include military officers or anyone who doesn’t constitutionally require Senate approval. But without some explanation in the brief, I don’t know that.
    Nonetheless, very interesting brief. On first read, it strikes me that Prof. Bamzai may be on to something.

  3. John O'Connor says:

    Marbury shmarbury.  Article II, Section II of the Constitution gives the Supreme Court jurisdiction over “Cases, in Law and Equity, arising under  . . . the Laws of the United States,” and then goes on to create original jurisdiction for a subset of that class.
    Isn’t this a “Case . . . arising under . . . the Laws of the United States?”  I note that the Fifth Amendment refers to courts-martial as “cases” so I think the Akbar decision is a “case,” it surely arises under the “laws od the United States,” and Congress has, by statute, provided for certiorari.

  4. Wahoowa says:

    John O’Connor, I wonder if you’ve read the brief. The prof doesn’t claim this isn’t a case arising under the laws of the US. The argument isnt’ that the SCt could never have jurisdiction over this case. The argument is that that you can’t have a writ of certiorai where the Supreme Court is the first Article III court to consider it. In other words, the SCt could have appellate jurisdiction over the case. But the present statutory setup essentially purports to give it original jurisdiction, which the brief argues it can’t have because CAAF, despite being called a “court” is really an Article I tribunal.

  5. Vulture says:

    As an aside, did Arness simply file in the wrong Court?

  6. Steve Vladeck says:

    In case it’s helpful, I wrote a long post responding to (and disagreeing with) the amicus brief: