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.

Comments

[Hawk]

If this is a Court the Supreme Court cannot review than why does the executive branch have the authority to create this court?

[Scarecrow Repair & Chippering]

Absolute non-expert here. Maybe because it's not a court in the judicial sense?

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.

[Jon S]

Absolute non expert is absolutely right in my absolutely non expert opinion.

[Drewski]

Certainly the executive can gather information, ask parties to an internal dispute to give their side of the story, and apply law, regulations, and sometimes equity to the facts to reach a decision.

From a bird's-eye view, these tribunals are equivalent to your boss calling you into the office to explain yourself. She may have to follow a strict disciplinary process; she may have to allow a representative to speak for an advise you. If you walk away unsatisfied that the result comports with the law, you may sue, but you can't take it to an appellate court until you do.

Outside the context of the military, executive courts are most commonly creatures of the Administrative Procedures Act, where they mostly serve the purposes of discouraging ligation via administrative exhaustion requirements and settling matters that could be adjudicated with a spreadsheet. As political bodies, these administrative courts are pretty consistent about ruling in the direction the wind blows, even as the rule of law erodes beneath it.

[Hawk]

There punishment power seems to be different than my boss calling me into the office.

[Drewski]

That's true, but that's because the military has certain extrajudicial punishment powers generally, not because of the status or nature of its tribunals. A commanding officer is not a court, but may restrict liberty, issue fines, or assign labor punitively.

That said, let's look at the practical side. Article III courts must decide law and facts. If SCOTUS hears the case directly, it must engage in fact-finding, and either defer to the tribunal (which would break Separation of Powers) or gather facts with fresh eyes -- by means of holding a trial. While SCOTUS unquestionably has the authority to find facts, this seems a huge waste of time when a lower court could do so competently.

[Martinned]

Huh? Courts defer to the executive all the time. That's what Chevron deference is.

(Not to mention that your objection applies equally to appeals from other non-Art. III courts, like territorial courts.)

[Jon S]

"Article III courts must decide law and facts. If SCOTUS hears the case directly, it must engage in fact-finding, and either defer to the tribunal (which would break Separation of Powers) or gather facts with fresh eyes -- by means of holding a trial."

This is not the problem here. An Article III court can indeed sit as a court of review in the first instance of an executive agency and defer to the facts found by the executive agency. It happens all the time - think of review of decisions of the USPTO for example on patentability and trademarkability. The problem is not that SCOTUS is an Article III court. The problem is SCOTUS sitting as the FIRST Article III court to review the decision. As the first Article III court to do so, SCOTUS is exercising original jurisdiction and per Article III (as interpreted by Marbury), SCOTUS's original jurisdiction is limited by the types of cases set out in the Constitution, and Congress cannot make "exceptions" to that jurisdiction to expand it (but can make "exceptions" to limit it further, as it has, or to limit appellate jurisdiction, as it has as well).

[Jon S]

Not disagreeing with you about how to characterize executive courts, but in the context of this case, it is even easier. Military tribunals are a long accepted way of dealing with disputes in the military. The President as Commander-in-Chief of the US Army & Navy, along with Congress's power to regulate the Army and Navy, give it ample authority to create a military system of justice and even, dare I say, "military courts." I don't see the reason to call them "so called courts" (other than as an homage to "so called judges") as Mr. Baude does. They are certainly "courts" in the ordinary sense of the word. That all said, the question is whether they exercise the "judicial power of the United States," and I think Mr. Baude's post makes out an excellent case that they do not, and therefore the Supreme Court cannot have original jurisdiction.

[Bob from Ohio]

"it can hear cases from territorial courts ... because those courts each exercise the judicial power of their respective government"

I do not understand why? Territorial courts are not Article III but Article I courts and current territorial courts have appeals heard by the circuit court first as I understand it.

[Jon S]

I had the same comment. And I wonder if Will is right (though I know he knows more than) that SCOTUS does review territorial courts in the first instance. I know that the 9th Circuit reviews decisions of the high courts of the territories in the Pacific - those cases don't go straight to SCOTUS.

[Martinned]

When I read prof. Bamzai's brief, I found it quite unconvincing. On the one hand he insists - as this post does - that he's not claiming that the Supreme Court can only hear appeals from Art. III courts, but on the other hand he doesn't explain at all on what basis he's distinguishing the CAAF from other non-Art. III courts.

While my knowledge of military justice is limited to watching lots of JAG, it strikes me as counter-intuitive to act as if something that clearly works like a court is not a court, simply based on legal technicality. (That is, unless you're going to do that for all non-Art. III courts.) I would think that anything that walks like a court, and quacks like a court should be treated as a court for the purposes of deciding whether appeals lie to the Supreme Court.

[Ohio Farmer]

Shouldn't this be the second coming of Hunter's Lessee?

[ReaderY]

It's a very interesting argument, but I predict it will lose.

1. It proves too much. The same logic means the Supreme Court cannot hear an original writ of habeas corpus, among other matters. This gives Congress power it was never thought to possess. Instead of taking the politically dangerous step of suspending the writ, Congress could bury piecemeal suspensions and go after political enemies simply by removing lower court jurisdiction to hear cases and making matters administrative rather than judicial. If this also removes Supreme Court review, the judiciary could be rendered a complete nullify, existing only on paper. More fundamentally, the administration could simply round people up and put them in concentration camps with no court having lawful jurisdiction to hear their complaint and no formal suspension of the writ of habeas corpus. Since current jurisprudence gives broad powers to create legislative courts and act administratively, removing judicial power to review wouldn't just be hiding an elephant in a mouse hole. It would be more like hiding a nuclear weapon.

2. The special considerations of the military. The military have always had special courts martial separate from the regular judiciary,l. This has been common practice in the law of nations for centuries. The constitution provides for separate treatment of military trials. Tthere is no right to jury. Thus, the constitution contemplates military trials without the regular panoply of rights.

[nonzenze]

Indeed, everyone agrees on (2) in principle. In practice, the phrase "military trials without the regular panoply of rights" requires a bit more explanation of which minimal rights are retained even in military trials?

Surely the military can enact trial without jury.
Surely they cannot enact trial by ordeal.

[Don Nico]

In a practical sense, if SCOTUS rules that they have jurisdiction, who is going to tell them (and enforce it) that they don't?

[nonzenze]

In a practical sense, if SCOTUS rules that they have jurisdiction, then they do. Your hypothetical is impossible.

[nonzenze]

So if the underlying procedure is not judicial in nature, then how is petitioner sentenced to 1 month in prison?

I understand that courts martial are contemplated and that military justices does not require an identical amount of due process as civilian courts (i.e. no juries). And I agree with the above comment that the military has the right to some extra-judicial punishment such as restriction of liberty or punitive labor. But for a custodial sentence of this length, due process surely requires a process that's judicial in nature.

Or taken to the extreme, surely the military could not have sentenced the petitioner to 50 years (or even 10 years) in prison without a judicial process and still conform to the 5A.

So as I see it, if there is no jurisdiction then petitioner should win on a habeas claim.

[Jon S]

"So if the underlying procedure is not judicial in nature, then how is petitioner sentenced to 1 month in prison?"

When you sign up for the military, you agree to be bound by the military system of justice. More generally, you agree to serve at the pleasure of the President - meaning that even if you technically only sign up for four years, you can be held to service longer, e.g., you can be forced to continue fighting a war for longer than you thought you signed up for (and that does indeed happen). So, if you can be forced to fight a war, I think you can be forced to sit in prison. I mean soldiers can be shot by their officers in the battlefield for disobeying orders in certain circumstances.

Now, this argument would not work in almost any other context - e.g., I doubt the federal government could condition your taking a job with the Postal Service to waiving your right to jury trial if you are accused of a crime on the job. But the military, on this point, is sui generis in that this is a long-accepted incident of the military that likely predates the Constitution. By making the President CC of the military, this power was implicit in it. Congress can regulate it extensively pursuant to the N&P clause its power to raise armies, etc., but it seems clear that the power to imprison military members for "military crimes" without a jury trial (or other more traditional due process constraints, but not all such constraints probably) is inherent in the Constitution.

[nonzenze]

Yes, I think I mentioned quite explicitly that I understand that. So you've spent a large post writing out stuff I've already agreed to.

Let me break it down:

(1) Beyond some threshold, even military punishment for military crimes must follow some subset of due process.

(1 eg) Sentencing the petitioner to 100 years imprisonment is on the far side of that threshold. I think that's a reasonable way-outer-limit in the sense that nobody contemplates the power of the CinC to imprison a member of the military for life with no due process.

(2) That subset of due process requires a process that is judicial in nature.

(3) If the process is not judicial in nature, then petitioner may be held in violation of the 5A.

[FlameCCT]

The subset process is the Uniform Code of Military Justice (UCMJ, 64 Stat. 109, 10 U.S.C.) and the Manual for Courts Martial, both of which are judicial in nature.

IIUC the military judicial system was put in place by Congress in a manner similar to the inferior federal courts have been set up. The military judicial system and the Judge Advocate General office is a separate chain of command with both equivalent of Prosecutors and Defense Attorneys with the same requirements as their civilian counterparts.

[Dr-P]

US brief states

Professor Bamzai observes (Br. 14-17) that in a line of cases beginning with Ex parte Vallandigham,
68 U.S. (1 Wall.) 243 (1864), this Court has held or stated that it lacks jurisdiction to review the decisions
of military commissions. But those cases, including Vallandigham, noted the absence of statutory jurisdiction.
See Vallandigham, 68 U.S. at 251.

Accordingly, just a few years before Congress enacted Section 1259, this Court cited Vallandigham and several of the other decisions on which Professor Bamzai relies as standing for the proposition that Congress has "never deemed it appropriate to confer on this Court 'appellate jurisdiction to supervise the administration of criminal justice in the military'"?not the far more sweeping proposition that Congress could not confer such jurisdiction. Councilman, 420 U.S. at 746 (citation omitted).

[Dr-P]

further

To be sure, the Court's opinion in Vallandigham also indicated that review in that case would have been inconsistent with Article III. See 68 U.S. at 252-253.

But the military commission at issue there was not a court established by Congress; it was, instead, created on the authority of a commanding general, who conducted the only review of its findings and sentence. Id. at 243-244, 247-248. As a result, the writ of certiorari sought was to be directed to the Army Judge Advocate General, not to any tribunal. Id. at 243. And in concluding that the military commission was not of a "judicial character," the Court relied in part on United States v. Ferreira, 54 U.S. (13 How.) 40 (1852), which held that a district judge was not acting in a judicial capacity when he rendered decisions subject to review by the Secretary of the Treasury. Id. at 47-48; see Vallandigham, 68 U.S. at 253.

The CAAF, in contrast, is a court established by Act of Congress in the system of military justice recognized by the Constitution, and its decisions are of the same judicial character as those of the territorial courts and the District of Columbia Court of Appeals.16

[QuantumBoxCat]

In Baude's previous post he wrote:

"First, the Constitution does not allow Congress to regulate all in-state marijuana, and the Supreme Court should not have said that it does. ... The Supreme Court dismissed the role of states in a footnote in Gonzales v. Raich, but it was wrong to do so. ... It is the Constitution, not the Court, that is the ultimate rule of law in our system."

In this post Baude writes:

"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."

Doesn't the theme of the previous argument - that it is the Constitution and not the Court that is the ultimate rule of law in our system - undermine the attempt in this argument to say that Marbury is the precedent that controls? When you dislike the Court's precedent you argue that the Court "got it wrong" and then use a Constitution greater-than Court argument to do away with the precedent; when you like the precedent than the Court "got it right" and the Court becomes synonymous with the Constitution. But your previous argument casts doubt on any subsequent attempt to argue based on precedent as you have conceded that precedent doesn't matter if one posits that it was wrong and then tosses it aside.

Is this actually legal reasoning?