The #1 Military Justice Story of 2018 is the Supreme Court’s decision in Ortiz v. United States, 585 U.S. __, 138 S. Ct. 2165 (Jun. 22, 2018) (link to slip op.).

Ortiz was the first plenary review of a court-martial since United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008). In Denedo, the Court considered a challenge by the Solicitor General to CAAF’s conclusion that it (and each CCA) has jurisdiction to issue a writ of error coram nobis in a case where the conviction is final under Article 76 (general discussion here). The challenge was narrowly rejected. Writing for a five-justice majority, Justice Kennedy explained that a military appellate court’s “jurisdiction to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review.” 556 U.S. at 914. But writing for four dissenting justices, Chief Justice Roberts countered that “the UCMJ grants military courts of appeals no jurisdiction over final court-martial judgments, so there is no jurisdiction for a postconviction extraordinary writ to ‘aid.'” 556 U.S. at 921.

Many petitioners tried – but failed – to win review by the Court in the years following Denedo. Yet Ortiz brought together dozens of them to challenge concurrent service of appellate military judges on both a Court of Criminal Appeals (CCAs) and the Court of Military Commission Review (CMCR). The case also attracted an interested outsider; a law professor who asserted that the Supreme Court lacked appellate jurisdiction over CAAF’s decisions because, he argued, CAAF is a body within the Executive Branch that does not exercise the judicial power of the United States.

The result wasn’t unanimous, but it wasn’t close. Seven justices confirmed the Court’s appellate jurisdiction over CAAF and rejected the petitioners’ challenge to the CCAs reviews in their cases.

Writing for the Court, Justice Kagan explained that “the military justice system’s essential character—in a word, judicial—provides no reason to [distinguish it from an ordinary federal court].” 138 S. Ct. at 2174. She then outlined a litany of ways that courts-martial are “judicial bodies responsible for the trial and punishment of service members.” 138 S. Ct. at 2175 (marks omitted), and she concluded that “three constitutionally rooted courts, ending with the CAAF, rendered inherently judicial decisions [in Ortiz],” enabling the Supreme Court to exercise its appellate jurisdiction, 138 S. Ct. at 2180. Justice Thomas joined Justice Kagan’s opinion of the Court, but he also wrote a separate concurring opinion to emphasize that the jurisdiction conclusion “is consistent with the Founders’ understanding of judicial power.” 138 S. Ct. at 2184.

Justices Alito and Gorsuch dissented, with Justice Alito writing that:

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.

138 S. Ct. at 2200. And indeed there are stark differences between a civil court and a court-martial, like the fact that a court-martial panel is no jury, and Justice Alito emphasized that “it is precisely because Article II authorizes the President to discipline the military without invoking the judicial power of the United States that that the Constitution has always been understood to permit courts-martial to operate in the manner [that they do.]” 138 S. Ct. 2201. He concluded that “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,” and he decried that “what remains of the majority’s analysis boils down to the assertion that courts-martial ‘resemble’ conventional courts, indeed, that ‘court-likeness’ is the dispositive issue.” 138 S. Ct. at 2203 (internal citations omitted).

As for the substantive issue, the majority concluded (and the dissenters did not address) that appellate military judges may serve on both a CCA and the CMCR, because Congress allowed as much in the statutory scheme and because the Court found no reason to apply the Appointments Clause to prevent that kind of dual office-holding.

3 Responses to “Top Ten Military Justice Stories of 2018 – #1: Ortiz v. United States”

  1. Vulture says:

    It could be that you have struck a kind of balance here Zach.  The Top Story 10 is that the Sec Def wants the UCMJ put into action more.  The Top Story 1 is that the Supreme Court is keeping its power to review that action, the issue under review not withstanding.  Such long and drawn out process is, of course, unappealing.  But it’s the state of the system today, IMHO.  So we’re left with, I think, the Scholarship Saturday question of ‘do we have a healthy system?’  Are precedents and the guiding principles of the the higher courts being followed?
    A couple years ago your top story was the non-story that the Military Justice system hasn’t collapsed.  I shrug.  A pile of rubble is in a state of balance too.  There is a lot of work to be done.

  2. Shawn says:

    Here is a telling list of the top 10 stories by nature of the offence committed:
    1)  Child pornography.2)  Sexual assault.3)  Sexual assault.4)  Sexual assault.5)  Sexual assault (Andrews)6)  Child pornography (Dinger)7)  Indecent language to a minor (Robinson)8)  Contempt of court.9)  Rights of sexual assault victims.10) Military justice.

  3. Allan says:

    Telling, indeed.  If one only read CAAF decisions, one would think that military is filled with pedophiles and rapists (and that women in the military commit no crimes).  I am pretty sure that is not accurate.