Exciting Developments in Supreme Court Appellate Jurisdiction

Some would call it the second coming of Marbury v. Madison.

Two months ago I wrote about a set of cases pending at the Supreme Court from the Court of Appeals for the Armed Forces: Dalmazzi, Cox, & Ortiz v. United States. I argued that the Supreme Court lacked jurisdiction to hear an appeal directly from that so-called court (often called CAAF). Since then, some interesting things have happened.

First, that very same day, Professor Aditya Bamzai filed an amicus brief arguing that there was no appellate jurisdiction in the case. (Professor Bamzai was the first person I know of to spot this jurisdictional problem and alerted everybody to it in a previous case, which the Court eventually declined to review.)

Second, both the United States and the petitioner responded to this argument in their merits briefs, with the United States spending four pages arguing that Professor Bamzai was wrong because of previous precedents finding jurisdiction to review the decisions of territorial courts and state courts.

Third, last Friday, the Supreme Court took the very unusual step of giving Professor Bamzai ten minutes of time at oral argument to discuss the jurisdictional problem. It is unusual for a non-government amicus to be given any argument time, but this is particularly important since both of the parties disagree with Bamzai's argument against jurisdiction.

It is far too soon to get one's hopes up, but all of these things strike me as very promising developments. For reasons I will discuss in a draft paper, tentatively titled "Locating Non-Article III Adjudication" (or maybe "So-called Legislative Courts") I think that Professor Bamzai is correct. I will try to boil my reasons down to five quick points:

• Article III, as correctly interpreted by Marbury v. Madison, says that Congress cannot add to the Supreme Court's "original jurisdiction," so the Court has jurisdiction over the CAAF only if this is an appeal.
• For this to be an appeal, there must have been a certain kind of proceeding below. There are various formulations of what kind, but petitioners say the "touchstone is whether the underlying proceedings were 'judicial,'" which strikes me as basically right.
• But the CAAF does not and cannot exercise judicial power because it is part of the executive branch, and not the judicial branch of the United States or any other government. Such an exercise of executive power may well be constitutional under longstanding precedent, but it is not judicial.
• This does not mean that the Supreme Court can only hear cases from Article III courts—of course not—it can hear cases from territorial courts and state courts because those courts each exercise the judicial power of their respective government.
• It also does not mean that Congress could not provide judicial review of the CAAF. It just means that the review would have to go first to the Federal Circuit or some other lower federal court, which is what Congress has done with other so-called legislative courts.

In any event, it will be interesting to see what happens next.