Professor Steve Vladeck recently published an interesting analysis of the Supreme Court’s “troubling neglect of courts-martial,” and I agree with most of what he puts forth. Vladeck notes that military cases have been strikingly absent from the docket of the country’s highest court over the last two decades, a fact he highlights by pointing out that

[t]he 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.

Vladeck primarily attributes the dearth of military cases before the Supreme Court to the possibility that the Court views its relationship with the military differently than that with lower federal and state courts — in that it is more inclined to defer to the military justice system for the resolution of military issues — and the Court’s broader waning interest in direct criminal appeals, the predominant category of cases emerging from military courts.

Vladeck’s hypothesis is well received, and I believe it carries great explanatory power. But there is also a procedural bar that limits the number of military cases that can even possibly appear before the Supreme Court, and an exposition on it belongs in any analysis of the Court’s treatment of such cases.

To begin with, one should take a look at the caseload of general and special courts-martial that has the potential to work through the military court system, and ultimately to arrive before the Supreme Court (I have excluded summary courts-martial because, as a general matter, they do not entail a right to appeal). According to the Annual Report Pursuant to the Uniform Code of Military Justice submitted to Congress by the Judge Advocates General of the armed forces and the CAAF — the country’s highest military court — there were approximately 2,335 active general and special courts-martial across the four services in Fiscal Year 2015. In turn, there were 880 total filings to CAAF during this time period. This data shows that there is no lack of legal material climbing up the military appellate ladder.

However, as Vladeck has previously noted, Article 67a of the UCMJ stands as a formidable bulwark between any military case and the Supreme Court. Per subsection (a), “Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari.” But it goes on to mandate that “[t]he Supreme Court may not review by a writ of certiorari under this section any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review.”

CAAF principally conducts its appellate function through discretionary review, similar to the Supreme Court. As such, apart from a few exceptions, it controls its docket by granting or denying petitions for review as it sees fit. And Article 67a makes the exercise of CAAF’s discretion determinative of the Supreme Court’s ability to grant writs of certiorari to military cases on direct appeal. Put more simply, CAAF exercises almost total control over the pool of military cases to which the Supreme Court might have the option of granting review.

With this in mind, CAAF only issued 83 dispositions during FY2015 that could theoretically be acted on by the Supreme Court, and only 72 filings during this timeframe will appear before CAAF in the future to be disposed of in some fashion that could be reviewed by the Court. Moreover, the number of petitions for certiorari that are actually submitted from military cases are dramatically lower than the total number of cases from which such submissions are possible. As an example, only four petitions came out of the Navy in FY2014, and zero did in FY2015. In turn, only one came out of the Air Force in FY2014, and two did in FY2015. These numbers represent remarkable drawdowns from the several hundred cases that seek CAAF review annually, and a severe limiting of the number of cases that the Supreme Court could potentially review.

So while Vladeck’s proffered explanation for why the Supreme Court refrains from granting writs of certiorari to military cases is quite insightful, it’s not a complete account of the situation. A more comprehensive description combines Vladeck’s deductions that the Supreme Court is highly deferential to military courts and has shown a lack of interest in the legal matters they primarily confront with the fact that the Court also generally has far fewer military cases to choose from compared to those emanating from civilian courts. It thus appears to ultimately be a matter of deference, preference, and numbers.

The views expressed are solely the author’s and do not represent those of CAAF or the US Government.