Later this year, the Supreme Court will decide whether to take up the case of Akbar v. United States — in which the Petitioner is seeking review of a capital court-martial conviction on the ground that the means by which the military imposes the death penalty is unconstitutional. In a nutshell, the Petitioner’s challenge is to Congress’s delegation to the President of the power to prescribe the aggravating factors that must be found in order to sentence a servicemember to death (which the President has done through Rule 1004 of the Rules for Courts-Martial). Although the Supreme Court expressly upheld that scheme in 1996 in Loving v. United StatesLoving predated the renaissance in the Court’s Sixth Amendment jurisprudence that began with Apprendi v. New Jersey, and that led the Justices, in their 2002 ruling in Ring v. Arizona, to hold that aggravating factors in capital cases constitute elements of the crime that must be proved beyond a reasonable doubt to a jury. Loving, in contrast, is predicated on the (now-repudiated) notion that aggravating factors are not elements (because only Congress can prescribe elements of federal crimes). Thus, Akbar asks a fairly simple doctrinal question: Does Loving survive Ring?

The Court of Appeals for the Armed Forces (CAAF — the Article I court that sits atop the court-martial system) didn’t really answer that question in its otherwise lengthy (and divided on other grounds) August 2015 affirmance of Akbar’s death sentence. Quoting the Supreme Court’s admonition that lower courts should not assume that the Supreme Court has overruled its earlier decisions sub silentio, Judge Ohlson explained that “we will continue to adhere to the holding in Loving unless the Supreme Court decides at some point in the future that there is a basis to overrule that precedent.” Thus, Akbar presents a major (and novel) constitutional challenge to how capital punishment is imposed by the military, a challenge that the Court of Appeals held only the Supreme Court properly can resolve, and a challenge that, if meritorious, would call into question all military death sentences. One would think, then, that it’s a no-brainer for certiorari.

The problem, though, is the Supreme Court’s relationship with the court-martial system. The last time the Court granted plenary review of a servicemember’s challenge to a court-martial was on November 8, 1996(!). The Court has granted three petitions from the government in the ensuing two decades, but only one of those involved a legal question about the rules and procedures of courts-martial, specifically; the other two both went to the incidental powers of military courts. The Supreme Court’s neglect of courts-martial has even become a punchline over at CAAFlog, which awards a “Golden CAAF” “to any counsel who gets a cert grant to review a CAAF decision.” (We’re up to a grand total of one since CAAFlog’s inception.)

Why does the Supreme Court ignore the military even in cases in which it has jurisdiction to review a court-martial? It seems to me that there are three possible explanations:

  1. There is a perception that the issues presented in appeals from CAAF just aren’t worth the Court’s time, especially since they’re usually only about military law and/or procedure, and seldom have implications outside the military justice system;
  2. Even if the issues are sometimes cert.-worthy, the Court views its relationship with the military courts differently than its relationship with lower federal and state courts — and is more inclined to defer to CAAF’s resolution of these issues; or
  3. The decline in review of courts-martial is part of the larger waning of the Court’s interest in direct criminal appeals (including, in the most recent Term, a grand total of two merits decisions arising out of direct appeals from state courts in criminal cases).

My own view, for what it’s worth, is that it’s mostly a combination of (2) and (3); there have certainly been plenty of cert.-worthy questions to come out of courts-martial over the past two decades, including a bunch that involved interpretations of constitutional provisions or federal statutes that apply far beyond the military justice system. Indeed, the well-documented “civilianization” of military justice has, among other things, mooted any argument that the body of law applicable in military courts is somehow separate and apart from the federal law of which the Supreme Court is the principal superintendent. Thus, any notion that these cases just aren’t “worth it” seems belied by what’s actually been true on the ground.

As for (2) and (3), as the National Institute of Military Justice argues in an amicus brief filed today in support of certiorari (that I co-authored with Lindsay Harrison at Jenner & Block), neither of these justifications holds up to closer scrutiny, entirely because of the fundamental differences in how collateral and direct review have evolved with respect to courts-martial in contrast to their civilian brethren.

For example, the downturn in the Supreme Court’s appellate docket in civilian criminal cases largely correlated with two contemporaneous developments: the rise of wide-ranging collateral post-conviction review of state and federal civilian criminal convictions through habeas petitions (largely absolving the Court of any need to supervise direct criminal appeals), and Congress’s all-but-elimination of the Supreme Court’s mandatory appellate jurisdiction (especially in criminal cases), which only further empowered the Court to eschew direct criminal appeals that didn’t meet the more stringent criteria for certiorari. Because of these developments, the brief argues, “it is now the rare case in which this Court grants certiorari in a direct criminal appeal—especially where the question presented has not divided the lower courts, or is unlikely to be of surpassing national importance.”

Whatever the merits of these developments for civilian criminal convictions, the brief explains,

these same trends should both militate in the opposite direction with respect to this Court’s review of criminal convictions in military courts. In the military context, collateral review of criminal convictions is severely limited to whether the military court gave “full and fair consideration” to the defendant’s constitutional claims. And unlike what’s true for civilian criminal convictions, Congress has clearly and explicitly indicated its desire for this Court to exercise a more aggressive supervisory role over military convictions—even though few, if any, will give rise to divisions of authority among the lower courts.

In other words, the brief argues, taking the highly deferential scope of habeas review in the court-martial context together with Congress’s express and explicit decision to expand the Supreme Court’s direct appellate jurisdiction over courts-martial through the Military Justice Act of 1983, “the Court is meant to—and should—play a different and more active role in reviewing direct appeals from the military justice system.” And although that doesn’t mean the Court should grant certiorari in all or even most cases coming out of the court-martial system, it certainly does seem to suggest that the Court should be taking more than one case from a servicemember every 20 years. More fundamentally, it underscores the imperative for granting certiorari in a case like Akbar — a capital case raising a constitutional question that implicates the military death penalty writ large, and that the lower courts specifically held only the Supreme Court could answer.

The government’s response to the cert. petition is currently due on June 8. Something tells me that the Solicitor General won’t take quite the same view of the imperative for more Supreme Court review of courts-martial, all the more so out of a concern that the constitutional question might actually be a loser for the government on the merits. But the point of our amicus brief — and this post — is not to take a position on the merits (i.e., whether Loving survives Ring). I suspect reasonable minds can and will differ on that point. But if nothing else, hopefully we can all agree that it’s an important enough question for the Court to take either way, all the more so given that, thanks to the deferential scope of military habeas, there’s likely no other vehicle for getting the issue before the Justices — and, per CAAF’s ruling, no likelihood that a lower court can resolve it on its own.