The Supreme Court decided Ortiz v. United States, 585 U.S. __, No. 16-1423 (link to slip op.), on Friday, June 22, 2018. In a 7-2 decision, the Court affirms the existence of appellate jurisdiction over CAAF and also affirms CAAF’s decision that found no violation in concurrent service of appellate military judges on both a Court of Criminal Appeals (CCAs) and the Court of Military Commission Review (CMCR).

Justice Kagan writes for the Court. Justice Thomas writes separately, concurring. Justice Alito dissents, joined by Justice Gorsuch, disagreeing that the Court has appellate jurisdiction over CAAF.

The Military Commissions Act of 2009 established the CMCR as an independent Article I court of record. Judges are appointed to the CMCR by the President, with Senate confirmation. Additionally, the Secretary of Defense may also assign commissioned officers of the armed forces to serve as appellate judges on the CMCR. Ortiz, and a large group of consolidated and trailer cases, involve commissioned officers who were assigned by the Secretary of Defense to the CMCR and then (to avoid a potential constitutional challenge to their CMCR assignments) nominated by the President and confirmed by the Senate, all while simultaneously serving as appellate military judges on CCAs. The court-martial convictions in Ortiz and the others cases were reviewed by CCA panels that included these dual-hatted officers, and the petitioners challenged the judges’ continued service as CCA judges under both the Appointments Clause of the Constitution and also a federal statute – 10 U.S.C. § 973 – that generally prohibits military officers from holding civil office.

CAAF rejected some of the challenges as moot in United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. 2016) (CAAFlog case page), because the CCA decisions were issued before the challenged judges were appointed to the CMCR by the President. But CAAF addressed the substance of the challenges – and rejected them – in United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017) (CAAFlog case page), holding that there was no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case.

Many petitions for certiorari followed, and the Supreme Court granted review in three cases: Dalmazzi v. United States, No. 16-961; Cox, et al., v. United States, No. 16-1017 (the Dalmazzi trailer cases); and Ortiz v. United States, No. 16-1423. Those grants were the #2 Military Justice Story of 2017. The Court also held petitions for certiorari in a large number of Ortiz trailer cases (the largest of which is Abdirahman).

Those grants – and Friday’s decision – are the first plenary review of a court-martial by SCOTUS since United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).

Justice Kagan’s majority opinion addresses three issues. First, she explains that the Court has appellate jurisdiction over CAAF decisions, rejecting a challenge from a law professor who appeared as an amicus curiae:

“[T]he essential criterion of appellate jurisdiction,” the Chief Justice explained, is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.” 1 Cranch, at 175. Marbury’s petition, Chief Justice Marshall held, commenced the cause—or, to use the more modern word, the case; hence, it was not a matter for appellate jurisdiction. Bamzai contends that the same is true of Ortiz’s petition.

On any ordinary understanding of the great Chief Justice’s words, that is a surprising claim. Ortiz’s petition asks us to “revise and correct” the latest decision in a “cause” that began in and progressed through military justice “proceedings.” Ibid. Or, as the Government puts the point, this case fits within Chief Justice Marshall’s standard because “it comes to th[is] Court on review of the Court of Appeals for the Armed Forces’ decision, which reviewed a criminal proceeding that originated in [a] court[]-martial.” Tr. of Oral Arg. 47–48. So this Court would hardly be the first to render a decision in the case. Unless Chief Justice Marshall’s test implicitly exempts cases instituted in a military court—as contrasted, for example, with an ordinary federal court—the case is now appellate.

The military justice system’s essential character—in a word, judicial—provides no reason to make that distinction. . . .

Slip op. at 7-8. But Justices Alito and Gorsuch dissent, with Justice Alito explaining:

Due to reforms adopted in the recent past, it is possible today to mistake a military tribunal for a regular court and thus to forget its fundamental nature as an instrument of military discipline, but no one would have made that mistake at the time of the founding and for many years thereafter.

Diss. op. at 21. And concluding:

the majority has done nothing to undermine the overwhelming historical consensus that courts-martial permissibly carry out their functions by exercising executive rather than judicial power.

Diss. op. at 26.

Justice Kagan then addresses the substantive issue: whether appellate military judges may serve on both a CCA and the CMCR (a question the dissenters do not reach). The answer is yes, for two reasons.

First, the majority rejects the argument that 10 U.S.C. § 973 prohibits such dual service. That statute prohibits military officers from holding civil office “except as otherwise authorized by law.” 10 U.S.C. § 973(b)(2). Justice Kagan explains that the separate statute authorizing the Secretary of Defense to assign military officers to the CMCR means that such service is authorized by law:

In the circumstances here, however, the authorization in §950f(b)(2) was the only thing necessary to exempt Judge Mitchell from the civil office-holding ban—not just before but also after his presidential appointment. That provision, as just noted, unambiguously permitted the Secretary of Defense to place Judge Mitchell on the CMCR, even if such a judgeship is a “civil office.” See supra, at 20. And once that happened, the President’s later appointment of Judge Mitchell made not a whit of difference. Nothing in §950f (or any other law) suggests that the President’s appointment erased or otherwise negated the Secretary’s earlier action. To the contrary, that appointment (made for purposes of protecting against a constitutional challenge, see supra, at 3) merely ratified what the Secretary had already done. The nomination papers that the President submitted to the Senate reflect that fact. They sought confirmation of Judge Mitchell’s appointment as a CMCR judge “[i]n accordance with [his] continued status as [a CMCR] judge pursuant to [his] assignment by the Secretary of Defense[,] under 10 U. S. C. Section950f(b)(2).” 162 Cong. Rec. S1474 (Mar. 14, 2016). So after the Senate approved the nomination, Judge Mitchell served on the CMCR by virtue of both the Secretary’s assignment and the President’s appointment. And because §950f(b)(2) expressly authorized the Secretary’s assignment, Judge Mitchell’s service on the CMCR could not run afoul of §973(b)(2)(A)’s general rule.

Slip op. at 21-22. Put differently:

Congress determined that military officers threaten civilian preeminence in government by either “hold[ing]” or “exercis[ing] the functions of ” important civil offices. Except . . . if Congress decides otherwise and says as much.

And once again, here Congress did exactly that. Judge Mitchell became a CMCR judge, while remaining in the military, because of a secretarial assignment that Congress explicitly authorized. See supra, at 20–21. After his presidential appointment, he continued on the same court,doing the same work, in keeping with the same congressional approval. Even supposing he obtained a “new office” in the way Ortiz says, that acquisition is of no moment. With or without that formal office, Judge Mitchell “h[e]ld, or exercise[d] the functions of,” a CMCR judgeship, and so was subject to §973(b)(2)(A)’s ban. But likewise, with or without that formal office, Judge Mitchell could receive permission from Congress to do the job—that is, to sit as a judge on the CMCR. And §950f(b)(2) gave Judge Mitchell that legislative green light, from the date of his assignment through his ruling on Ortiz’s case and beyond.

Slip op. at 23.

Second, Justice Kagan rejects any challenge based on the Appointments Clause:

This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of “incongruity” or “incompatibility” to test the permissibility of holding two offices. As Ortiz himself acknowledges, he can“cite no authority holding that the Appointments Clause prohibits this sort of simultaneous service.” Id., at 52.

And if we were ever to apply the Clause to dual office-holding, we would not start here. Ortiz tells no plausible story about how Judge Mitchell’s service on the CMCR would result in “undue influence” on his CCA colleagues.The CMCR does not review the CCA’s decisions (or vice versa); indeed, the two courts do not have any overlapping jurisdiction. They are parts of separate judicial systems, adjudicating different kinds of charges against different kinds of defendants. See supra, at 1–3, and n. 1. We cannot imagine that anyone on the CCA acceded to Judge Mitchell’s views because he also sat on the CMCR—any more than we can imagine a judge on an Article III Court of Appeals yielding to a colleague because she did double duty on the Foreign Intelligence Surveillance Court of Review (another specialized court). The CAAF put the point well: “When Colonel Mitchell sits as a CCA judge, he is no different from any other CCA judge.” 76 M. J., at 193; see supra, at 5. So there is no violation of the Appointments Clause.

Slip op. at 24-25.

As for Dalmazzi (the case CAAF found moot) and Cox (the Dalmazzi trailer cases), both of which were also granted certiorari, the Court dismisses those petitions as improvidently granted. Slip op. at 5 n.2

Disclosure: In my civilian capacity I represent service members who raised Dalmazzi/Ortiz issues. 

17 Responses to “Opinion Analysis: The Supreme Court affirms that it has appellate jurisdiction over CAAF decisions and that an appellate military judge may sit on both a CCA and the CMCR”

  1. Vulture says:

    Justice Gorsuch sided with an dissent based on Marbury?  That’s like arguing with your dad for hitting the egg with the wrong sperm.

  2. Capt. Harrison Byers says:

    Gorsuch and Alito, the JV players on SCOTUS.  

  3. Anonymous says:

    Sotomayor and Kagan are more junior than Alito FYI

  4. Capt. Harrison Byers says:

    I meant in intellectual and writing capacity.  Yes I know those are fighting words to some people.

  5. Wahoowa says:

    I will never understand the pooh-poohing of the amicus “no jurisdiction” argument on this website (since the moment it was first raised). The Supreme Court apparently didn’t think it frivolous or intellectually JV or whatever. In fact, they thought so much of it that they gave an amicus the extremely rare opportunity to participate in oral argument (this ain’t Project Outreach–the SCt doesn’t invite amicus argument just for the sake of politeness). Some people seem to think the options are direct appeals or no review authority at all, which is clearly not what’s going on. The only questions is whether it has to go through another Art. III court first (a problem that could easily be fixed in Congress by either making CAAF an Art. III court or authorizing an appeal through the Federal Circuit or whatever).
    If you read the opinion, the debate between the Thomas concurrence and the Alito dissent is fascinating to me. Both make very good points, and I’m not sure which convinces me. Alito’s distinguishing of the territorial court cases in particular is a pretty incisive piece of argument. But whatever. Some guy posting pseudonymously as a William Shatner bit part on an internet blog is apparently qualified to contest the intellectual heft of Supreme Court justices based on a single opinion that he only partially understands.

  6. Zachary D Spilman says:

    That’s a very fair criticism of my lack of coverage of the issue, Wahoowa

  7. Capt. Harrison Byers says:

    Leave it to the UVa grad to ask for qualifications to anonymously comment on an internet blog that Monday-morning QBs appellate opinions, which are Monday-morning QB’ing endeavors in and of themselves.
    Ad hominen jabs aside, I appreciate your insight Wahoowa and will read those sections again with it in mind.

  8. stewie says:

    The SC’s jurisdiction is challenged in the course of the main, granted issue, of course they are going to address it. I think it was pretty succinctly and easily addressed. The majority didn’t struggle over it, they didn’t have to create anything spectacular or new. They looked, much like the commenters here did, to the myriad types of non-Art III courts and tribunals that the SC has held it properly has appellate jurisdiction over. They looked, much like the commenters here did, to the clearly judicial nature of the CM system.
     
    Thomas even recognizes the clear judicial nature, and the VERY vague language of Article III concerning SC appellate jurisdiction.  As he, unusually clearly and correctly, puts it: it’s about the case, not the Court. If this were an Article 15, Summary Court-Martial, or Admin Sep Board, then no, the SC doesn’t have appellate jurisdiction. If it’s a CM, an inherently judicial function, with appropriate appellate court(s), then yes, they do.  Again, all stuff the commenters you disdain said. This wasn’t rocket science.
    The central thrust of Alito’s dissent is thus:
    “Courts-martial are older than the republic, and have always been understood to be Executive Branch entities that help the President, as Commander in Chief, to discipline the Armed Forces. As currently constituted, military tribunals do not comply with Article III, and thus they cannot exercise the Federal Government’s judicial power.”
    So Alito basically says, we’ve always known we didn’t have jurisdiction…except, of course, that’s not true…the Supreme Court has been exercising jurisdiction over CMs for a long, long, long time.
    Then, Alito says this:
    “If the CAAF were to do something that either amounts to or requires the exercise of judicial power, it would be unconstitutional.”
     
    Shut it down boys, the CAAF is unconstitutional because just about all it does “amounts to or requires the exercise of judicial power.”
     
    And yes Wahoowa, we mere commentators do understand that this isn’t an all or nothing proposition. The “solution” to the “problem” would be to have an accused appeal a decision of CAAF to a Federal District Court and then on from there to the Supremes…which of course, would render the CAAF an utterly superfluous entity.
     
    At any rate, the reality is, ironically, laid out best by Thomas but also by the majority…it’s a vague section, that does not, as Alito assert clearly lay out much of anything, certainly nothing as it pertains to present-day courts-martial. Because it’s an otherwise expansive section appellate authority over “other cases,” there’s appellate authority over CM which are pretty clearly “other cases.”
     
    The problem with “strict constructionists” is they read a different Constitution than is actually on paper…instead of a purposefully vague compromise political document that often requires interpretation, they want to read a clear, black and white list of dos and don’ts.
     

  9. Wahoowa says:

    Stewie:
    You’re plainly not convinced and that’s fine; seven Supreme Court justices weren’t, and I’m not sure that I am either. But addressing the argument and explaining why it’s unconvincing to you is different from merely declaring it frivolous from the get-go. THAT is what I was addressing. Justice Kagan, who wrote the majority opinion, said in announcing the Court’s decision that “Professor Bamzai provoked some good and hard thinking on both sides.” I think that’s a much fairer assessment of the strength of the argument than the dismissive attitude that took hold in some of the earlier discussions here. I take the Justice at her word that the correct answer was not easy or obvious.
    At any rate, you make two errors that are worth pointing out: first, while the Supreme Court has indeed exercised jurisdiction over courts-martial for “a long, long, long time,” the vast majority of that time it has been via habeas litigation, on appeal from another Article III court. (Unproblematic under the amicus argument). Direct appeal only came about in 1983. (Relatedly, was the CMA an “utterly superfluous entity” from 1951-83?)
    Second, the “solution” would NOT necessarily require district court review first (even presuming Congress chose not to give CAAF Art. III status, which I suspect would’ve been the most likely fix had it been necessary). Appeal from the Board of Immigration Appeals, the Court of Appeals for Veteran Claims, and the Merit Systems Protection Board (all Art. I bodies) go directly to an appellate court. I suspect there’s another board/court or two in the same boat of which I’m just not aware.

  10. stewie says:

    No one said “frivolous” that I recall. That’s a very specific word with a very specific legal meaning.
    What people said was that it was a waste of time, and the answer was obvious.
    7/9 SC attorneys agreed. Justice Kagan wasn’t a jerk…good on her, that does not mean she thinks this was a tough call or that it was a difficult question.
    It wasn’t, the opinion shows it wasn’t, and the opinion tracks nearly all the arguments made here by mere commentators.
    I would count 35 years to be a long, long time. I didn’t say forever, or always. But nearly two generations counts as a long, long time. It’s longer than most judge advocates have been alive considering the largest number are CPTs. So can’t agree with you that my statement there was an error. By way of comparison, Roe v. Wade is only 10 years older.
    Yes, you could skip the district courts, but we know, right now, with death penalty litigation that’s not what happens when a CM case makes it to the federal system. So if one were to say, hey you know what, they are right, you can’t do it this way, that’s the most likely path forward because it’s an already used path for a special kind of CM.
    My point in responding is if what you wanted to say was “I think the amicus brief has merit” then you could have just said that, without getting your underwear bunched and taking shots at folks who think the brief didn’t have much merit.
     

  11. Vulture says:

    Neither Alito or Gorsch are JV by any means.  And yes, Alito does pen a convincing argument.  But now that Kennedy is leaving, it is like finding out you were in foster care all along.

  12. stewie says:

    Alito is not JV, just a far-right ideologue…but yes Gorsuch is pretty JV quite frankly IMO.

  13. Vulture says:

    No animosity here stewie, but I have to disagree.  Gorsuch has as much of an agenda as Alito has an ideology.  The reason I say “not JV” is because that is what we said about ISIS, meaning our national disposition “we.”  It’s just that part of Alito’s argument that goes into the part of playing dress up at the executive branch.  Some very good lawyers are in the military system, I’m sure you know, but the pageantry that sometimes goes on makes me wonder if the Supreme Court is the right place for review.

  14. stewie says:

    I mean you give a JV squad access to weapons (or a seat on the Supreme Court) and they can still do a lot of damage.

  15. Vulture says:

      How do you get one old lady to say “Fuck!?”  Have another one say “Bingo.”
     
      Bingo stewie.  The US military’s reliance and misapplication on punitive action as a vehicle to ensure victory is killing it.  The current state of poor leadership from the O-6 level up has effectively put both the weapons and legality in the hands of the duds that drooled themselves when ISIS was forming up.
      C’mon!  Prosecute 1LT Behenna?  What a bunch of bullshit.  And if doctors were able to adequately provide medical care instead of have to worry about a jacked up drug test, or receive necessary screening instead of shooting up a bunch of deploying soldiers, or get prosecuted for molestation when doing a pelvic exam, then maybe soldiers wouldn’t be shooting themselves in record numbers.  Less spank for the rank is only half of it.  Were we really better off for having McMasters in the NSA role?  Not if the current occupant is any indication.  Old man McCaffery sagely moaned about the “Reserve meltdown” more than a decade ago.  But did things get any better?  Local police departments get more gear from the military.  
      Point is that JAG Corps was spun up to put into practice the device of the UCMJ, a tool built for wars of national determination, against a second rate military opponent.  Not calling Iraq or Afghanistan JV, but they ain’t the Russians, they might not even be as tough as the North Koreans.  But JAG Corp was wound for justifying its existence as tool for commanders that pretty much sucked.  And the Congress is letting it happen with every bill they pass.  I don’t envy the SC’s position today, Alito or Kagen.  
     
      You can say “Fuck!” now.  You can even have my bingo board.

  16. stewie says:

    Well…that escalated quickly. Brick killed a guy.
    Not sure how we got to that post from where we started.

  17. Vulture says:

    Didn’t escalate quickly at all stewie.  We are back at the same question we had years ago.  Is the UCMJ a tool for the Commander or a tool of the Commander?  The Supreme Court answered, “Neither.  It’s an enabler.”

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