Although it was not exactly a headline-grabbing ruling, the Supreme Court’s decision last Friday in Ortiz v. United States will likely receive a fair amount of academic attention, especially from Federal Courts casebooks, thanks to its long-overdue analysis of the types of disputes (and nature of the tribunals) over which the Court may exercise direct appellate jurisdiction. After all, the bulk of Justice Kagan’s opinion for a 7-2 majority was devoted not to the merits of the dispute in Ortiz, but to why Congress could constitutionally empower the Supreme Court to directly review the challenged ruling by the U.S. Court of Appeals for the Armed Forces (“CAAF”), the Article I court of record that sits atop the court-martial system. And although Justices Alito and Gorsuch disagreed with the Court’s bottom line, Ortiz settles beyond peradventure that the Supreme Court can, indeed, directly supervise CAAF. [Full disclosure: I was counsel of record for, and argued on behalf of, the Petitioner.]
There is a big difference, however, between asserting supervisory authority and actually exercising it. In the 35 years since Congress authorized direct appeals to the Supreme Court from CAAF, the Justices have only decided 10 such cases, almost all of which involved questions about either the powers of military courts or the qualifications of military judges (Ortiz involved both), and not the more mundane procedural, evidentiary, or substantive questions that tend to arise in federal criminal trials. Indeed, along with its two companion cases, Ortiz was the Court’s first grant of a petition from a servicemember since 1996. Otherwise, the Justices’ approach has generally been to treat the court-martial system like a state court—and to leave questions of military law, even those with more general constitutional implications, to CAAF. In her majority opinion in Ortiz, Justice Kagan made this point all-but explicitly, noting that the current structure of the court-martial system reflects “an appellate process . . . that replicates the judicial apparatus found in most States.”
As one especially prominent example (of many), even when CAAF in 2015 identified a conflict between two Supreme Court decisions—a 1996 case about the military death penalty and a 2002 decision involving Arizona’s—that only the Justices could resolve, the Court denied the resulting petition for certiorari without comment. (Other examples abound, including last June, when the Justices also refused to take up a controversial 2016 CAAF decision about the Religious Freedom Restoration Act.) And the Justices appear to be taking a similar, hands-off approach to the Guantánamo military commissions. Last October, the Justices refused to review a pair of divided rulings by the D.C. Circuit—denials that have only served to increase some of the structural uncertainty clouding the Guantánamo proceedings.
The message the Court seems to be sending in both contexts is that military law, for better or worse, is the exclusive province of the lower (usually military) courts—that, although the Supreme Court can and will have the last word when it wants to (as Ortiz confirms), as is increasingly the case with respect to the federal territories, federalism-like principles should also apply to the Supreme Court’s relationship with the military. So conceived, the Supreme Court will only grant direct appellate review of a criminal conviction rendered by the military in exceptional cases, and will generally leave to collateral post-conviction review in the Article III courts the lion’s share of constitutional objections that servicemember (and enemy combatant) defendants might raise.
In the post that follows, I offer three different arguments against this kind of de facto “military federalism”: First, it fails to account for limits on appellate review within the court-martial system. Second, it neglects the highly circumscribed nature of collateral review of military convictions. And third, it makes no sense whatsoever as applied to the Guantánamo military commissions, given both their structural differences from courts-martial and their track record to date. To spoil the punchline, although Ortiz settles that the Supreme Court can directly supervise the military justice system, it leaves in its wake difficult—and unanswered—questions about what that supervision should look like.
I. Limits on Direct Appellate Review of Courts-Martial
Despite Justice Kagan’s suggestion in Ortiz that courts-martial today bring with them “an appellate process . . . that replicates the judicial apparatus found in most States,” the analogy is quite a bit more complicated—and its implications not nearly as obvious.
Among other things, the trial courts in the military are not courts of record; only some convictions by court-martial can even be appealed to the service-branch appeals courts; those intermediate appeals courts do a substantial percentage of their work summarily; and CAAF—the “Supreme Court of the military justice system”—conducts plenary review in no more than 40 cases each year, in the majority of which it engages in exceptionally modest error correction.
And whereas the Supreme Court’s jurisdiction over state courts allows it to directly review rulings by intermediate state courts when the state court of last resort has declined to exercise discretionary jurisdiction, the same is not true for CAAF. Not only can the Supreme Court only review “decisions” by CAAF, but it can only review such decisions in capital cases, cases certified to CAAF by a service-branch Judge Advocate General, or cases in which CAAF granted a discretionary petition for review or otherwise “granted relief.” In other words, unlike what’s true for criminal appeals raising federal questions from every other jurisdiction in the country, CAAF has the power to foreclose the Supreme Court’s direct appellate review, at least in non-capital cases. (In Dalmazzi and Cox—the two cases dismissed as improvidently granted in light of Ortiz—the Court ducked an important question about whether it can review decisions in which CAAF initially grants review then hears argument and issues a published opinion at the end of which it vacates its prior grant of review.)
What this means in practice is that there are practical and structural reasons for the Justices to eschew application of federalism-like principles to their relationship with CAAF. In point of fact, there are plenty of cases that the Court can take from CAAF but doesn’t, and there are even more cases that it can’t take but otherwise should.
II. Limits on Collateral Review of Courts-Martial
Applying federalism-like principles to review of military convictions might nevertheless be justified if there were a robust practice of collateral post-conviction review of military convictions both within the military justice system and in the Article III civilian courts. CAAF itself, however, has adopted a very narrow reading of the availability of habeas within the military (a petition challenging that decision is pending). And even compared to federal habeas review of state-court convictions, collateral review of military convictions is heavily circumscribed—with Article III district courts limited to asking whether the military courts gave “full” and “fair consideration” to the prisoner’s constitutional claims.
As the Tenth Circuit (where, thanks to Fort Leavenworth, many of these cases end up) has explained,
[w]hen an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not consider the issue meritorious or requiring discussion.
In practice, this means that federal civilian courts “give greater deference to the military than [they] do to state courts in relation to [constitutional] claims.” Such deference might make sense if military defendants had the same right to appeal all the way to the Supreme Court that state-court defendants have today, but, again, they don’t. As a result, it’s not just that the Supreme Court is less inclined to take up important questions coming out of the court-martial system; it’s that, structurally, they’re often unable to do so either on direct appeal or collaterally.
What’s more, although the scope of collateral review of state-court convictions has evolved substantially in recent decades, the scope of such review of courts-martial has been fixed since 1953—over a compelling (albeit largely forgotten) dissent from the denial of rehearing by Justice Frankfurter setting out the myriad reasons why, if anything, collateral civilian review of military convictions ought to be more robust. Given the statutory limits on direct appellate review and the significant expansions of military jurisdiction to encompass non-military offenses (and personnel) in the intervening decades, if the Supreme Court really is serious about a federalism-like relationship with courts-martial, it may, at a minimum, be time to revisit whether collateral review of courts-martial should be so deferential.
III. Federalism and the Guantánamo Military Commissions
Finally, even if federalism-like principles have some purchase as applied to courts-martial, they make no sense at all as applied to the Guantánamo military commissions.
Among other things, the commissions are not modeled on the separate structure of the court-martial system. Instead, under the Military Commissions Act of 2006 (the “MCA”), appeals from the trial-level commissions and intermediate Article I Court of Military Commission Review (CMCR) go to the Article III D.C. Circuit—which not only hears appeals as of right from the CMCR, but which is in no way bound by legal conclusions reached by the commissions or the CMCR. When Congress enacted the MCA, it specifically rejected a proposal to have CAAF supervise the commissions. Structurally, then, the Guantánamo military commissions are not independent of the civilian courts in the way that courts-martial are; they are directly inferior to them.
That inferiority has been reflected in practice, as well. Under the exceptionally high bar of “plain error” review (and the even higher bar the Court of Appeals has imposed for writs of mandamus), the D.C. Circuit has repeatedly reversed rulings by the commissions and CMCR on matters ranging from constitutional interpretation to a judge’s recusal obligation. To be sure, unlike what’s generally the case for courts-martial, the legal questions raised in the military commissions tend not to center on questions of substantive military law. As Judge Tatel put it in 2016, “military commissions are primarily called upon to address questions about the laws of war, a body of international law hardly foreign to federal courts.” Thus, in both theory and practice, there is no federalism-like reason for the Justices to stay out of disputes arising out of the commissions.
But much like its deferential approach to petitions from CAAF, the Court has not taken up a single military commission appeal since Congress enacted the MCA (enacted in response to the Court’s decision in Hamdan v. Rumsfeld). And in the same Term that it decided Ortiz, it passed up two compelling opportunities. In Al Bahlul v. United States, the Court refused to take up the central jurisdictional issue plaguing the commissions—whether they may constitutionally try non-international war crimes, like inchoate conspiracy. As Judge Kavanaugh noted in his D.C. Circuit concurrence below, “[t]he question implicates an important part of the U.S. Government’s war strategy. And other cases in the pipeline require a clear answer to the question. . . . It is long past time for us to resolve the issue squarely and definitively.” But the D.C. Circuit failed to do that, with the fractured en banc court unable to produce a majority rationale even as it upheld a conspiracy conviction.
And in Al-Nashiri v. Trump, the Court left intact a divided D.C. Circuit decision abstaining from deciding a defendant’s pre-trial challenge to the commission’s subject-matter jurisdiction over the charged offenses—a decision that was predicated on principles of comity and deference, and the assumption that the military commission would expeditiously resolve the matter. That case has since been indefinitely abated due to an apparently intractable ethical conflict.
Of course, two cases do not a pattern make. But in Al Bahlul and Al-Nashiri, the Justices had two different opportunities to meaningfully exercise supervisory powers over the Guantánamo military commissions. And both times, they passed, leaving those questions to be resolved by the commissions in the first instance (and, at most, to be reconsidered by the civilian courts on post-conviction appeals many years from now). Federalism-like principles were front-and-center in Al-Nashiri, and they were lingering just below the surface in Al Bahlul, but they shouldn’t have been.
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For whatever reason, academic discussions of the federal courts and their broader role within the federal system have historically given short shrift to the military. The latest edition of Hart and Wechsler itself devotes just over two pages to courts-martial (and just over 12 pages to military commissions), even though they raise some of the hardest contemporary constitutional questions concerning the relationship between Article III and non-Article III federal courts. It’s safe to assume that Ortiz will provoke at least some renewed interest in the field from casebook authors and other scholars, as well it should. But the far more important question is whether it is also a harbinger of increased interest in military justice by the Justices themselves—or a one-off reaffirmation of supervisory authority that, all things being equal, the Court is just as happy to not exercise.