According to a provocative new amicus brief filed by the Hoover Institution’s Adam White and UVA Law Professor Aditya Bamzai in opposition to certiorari in Akbar v. United States, a case challenging the constitutionality of the military death penalty (about which I blogged at length in May), the answer is yes. In a nutshell, the brief argues, the judges of the US Court of Appeals for the Armed Forces (CAAF–the Article I appellate court that sits atop the court-martial system) are Executive Branch officers, and it’s well settled (thanks to Marbury v. Madison) that the Supreme Court lacks the constitutional authority to issue “original” writs directly to such officers–such as the writ of certiorari the Petitioner seeks in Akbar. Thus, the brief argues, the jurisdiction conferred upon the Supreme Court by Article 67a of the Uniform Code of Military Justice (UCMJ) and 28 U.S.C. § 1259 violates Article III, Section 2 of the Constitution–and so the petition in Akbar should be dismissed.

The post that follows has two goals: First, I aim to explain why I believe the brief is too clever by half–and why the Supreme Court does have the constitutional authority to entertain appeals qua writs of certiorari from CAAF. Indeed, as the below suggests, I don’t even think it’s a close question. Second, even if the Court’s jurisdiction over CAAF is a close question, that only bolsters the case for certiorari in Akbar–so the Justices can confront the issue squarely, rather than indirectly through non-precedential dispositions of cert. petitions. 

I.  Why the Supreme Court Has Jurisdiction To Review CAAF

The White/Bamzai amicus offers two subtly different arguments against the constitutionality of the Supreme Court’s appellate jurisdiction over CAAF: In some places, the brief seems to suggest that any Supreme Court review of non-Article III courts is “original,” quoting Professor Jaffe for the proposition that the first Article III court to review a constitutional question is necessarily exercising original jurisdiction because it is the first court to exercise “‘judicial power’ in the strict Article III sense. Of course, if this view were correct, it would call into question the Supreme Court’s appellate authority over state courts, territorial courts (like the Guam Supreme Court), and non-Article III federal courts (like the D.C. Court of Appeals). Suffice it to say, that’s simply nuts (and has been since at least Martin v. Hunter’s Lessee). Perhaps in response, the brief asserts that a reviewable disposition “may occur in a lower federal court; in a state court, or in a territorial court,” but doesn’t directly explain why those non-Article III courts are different from CAAF; instead, the focus seems to be on whether CAAF is a “court” in the first place.

This more nuanced argument seems to stem from the hybrid nature of CAAF, which, as Article 141 of the UCMJ provides, is a “court of record” created by Congress “under article I of the Constitution,” but which is “located for administrative purposes only in the Department of Defense.” It’s this last clause that’s the key, according to the White/Bamzai brief. As a result of this administrative arrangement, the brief argues, CAAF judges are (principal) Executive Branch officers, and so, just like what was true in Marbury, the Supreme Court lacks the power to issue writs directly to those officers (As the brief argues, “For constitutional purposes, the members of the CAAF thus stand on equal footing with James Madison in Marbury.”)

To me, there are two separate flaws with this line of reasoning–one functional, and one formal:

First, CAAF is a court of record exercising inherently judicial power. The analytical core of the White/Bamzai brief is the argument that CAAF isn’t really a “court.” As they write, “the Court’s precedents limit the exercise of [appellate] jurisdiction to cases arising from an earlier judicial disposition by a ‘court’ as the Constitution understands that term,” and because CAAF is a military court staffed by Executive Branch officers, it doesn’t meet that definition. (Technically, of course, CAAF actually isn’t a military court; by law, it is a civilian court staffed by judges “appointed from civilian life.”)

Frankly, this argument strikes me as a non-sequitur. Yes, reasonable minds and Federal Courts scholars can disagree about where the line is between “courts” and other adjudicatory entities (and whether that is the line that Article III draws between when the Supreme Court’s review is “original” and when it is “appellate”). But when Congress (1) creates a court by statute; (2) calls it a “court”; (3) staffs it with “judges” with salary and tenure protections; (4) invests it with traditional adjudicatory powers; and (5) expressly provides that the new entity is a “court of record,” it seems to me that the entity is, contra White and Bamzai, a “‘court’ as the Constitution understands that term.” (Indeed, and perhaps tellingly, the brief does not offer its own definition of what is a “court” for these purposes.) Whether each of these five criteria are necessary, they certainly seem sufficient to the conclusion that Supreme Court review of decisions by such an entity is “appellate” in the constitutional sense.

After all, as the Supreme Court emphasized in Ex parte Bollman (its first decision clarifying Marbury‘s limits on its original jurisdiction), the line between original and appellate jurisdiction is a functional one, not a formal one–and clearly puts on the appellate side “the revision of a decision of an inferior court, by which a citizen has been committed to jail.” That’s Akbar. So unless no non-Article III court can be a “‘court’ as the Constitution understands that term” (which, again, is a non-starter), then I’m hard-pressed to see the argument that CAAF is not a “court,” or that Supreme Court review of its decisions is not “appellate,” just because the judges are located “for administrative purposes only” in the Executive Branch.

In arguing to the contrary, the brief makes much of the Supreme Court’s 1864 decision in Ex parte Vallandigham, which held that the Court lacked statutory and constitutional jurisdiction to issue a writ of certiorari to a Civil War-era military commission. But Civil War-era military commissions were wholly irregular bodies convened unilaterally by the Executive Branch with little–if any–semblance to neutral judicial proceedings (a big part of why the Supreme Court would invalidate them two years later in Ex parte Milligan). Even if Vallandigham actually settled the constitutional question vis-a-vis Civil War-era military commissions (but see Ex parte Yerger, in which the Court subsequently issued an original writ of habeas corpus to review a military commission), to compare those bodies to CAAF is to compare apples to Vulcans–and to utterly ignore the well-documented civilianization of the military judicial system in the latter half of the twentieth century, a move that, whatever its wisdom, had at its core the conversion of previously ad hoc executive branch entities into judicial entities exercising quintessentially judicial power.

That’s a big part of why, in its 2009 decision in United States v. Denedo, the Supreme Court held that CAAF could issue writs of error coram nobis; as a “court[] established by Act of Congress,” it had the authority to issue “all writs necessary or appropriate in aid of [its] respective jurisdiction[].”

Second, the Constitution does not forbid the issuance of original writs to Executive Branch officers as part of appellate review. As the caption of the White/Bamzai brief itself notes, the Akbar case reached the Supreme Court “on petition for a writ of certiorari to the United States Court of Appeals for the Armed Forces,” not on petition for a writ of certiorari to any of the CAAF’s judges. This may seem like a semantic distinction, but recall that Article 141 provides that CAAF is located in the Executive Branch “for administrative purposes only.” A writ directed to a court of record to review the decision below is therefore neither an original writ nor a writ directed to an Executive Branch officer (like Secretary Madison in Marbury).

But even if the writ were directed to the officer and not the court, there is plenty of precedent for the Supreme Court’s issuance of putatively “original” writs to Executive Branch officers–including the dozens and dozens of cases, like Bollman and Yerger, in which the Court has issued an “original” writ of habeas corpus. (The writ in such cases, to be effective, must be issued to the petitioner’s jailer.) As Bollman makes clear, such writs are permissible notwithstanding Marbury so long as the underlying review is functionally appellate; the fact that the writ is formally issued to an Executive Branch officer in such cases is irrelevant, and does nothing to turn what would otherwise have been permissible appellate review for constitutional purposes into forbidden original review. Thus, even if Akbar was actually seeking a writ directed to Executive Branch officers (again, he isn’t), that fact isn’t dispositive of whether the Supreme Court’s issuance thereof is an exercise of constitutional appellate or constitutional original jurisdiction.

Imagine, in contrast, if the White/Bamzai brief were correct. Then by that logic, (1) we’d end up with an incredibly formal (and narrow) understanding of which entities are lower “courts” subject to the Supreme Court’s appellate review; (2) even in cases in which the review clearly was “appellate,” the Court would lack the ability to issue writs directly to Executive Branch officers (like writs of habeas corpus); and (3) there’d thus be a universe of claims–including, as in Akbar, serious federal constitutional claims–effectively insulated from Supreme Court review, thereby threatening the Court’s critical role in our constitutional system. In the court-martial context, at least, White and Bamzai argue that collateral review via habeas is sufficient to avoid those kinds of concerns. But as the National Institute of Military Justice observed in the amicus brief that I co-authored in support of certiorari in Akbar, collateral review of courts-martial is extremely deferential, and almost certainly would not reach claims like the constitutional challenge to the military death penalty at issue in Akbar. So it’s direct review or bust for servicemembers like Akbar–and, if White and Bamzai are correct, it’s bust.

II.  Why the White/Bamzai Brief Bolsters the Case for Certiorari in Akbar 

Even if readers don’t find the above analysis convincing (I’ll be happy enough if you even made it this far), what that suggests, at bottom, is that there’s a significant question about the constitutionality of the Supreme Court’s jurisdiction over CAAF–a question that the Court needs to clear up. Curiously, the White/Bamzai brief, although styled as a brief “in support of Respondent,” doesn’t actually support the government’s proposed disposition (a denial of certiorari on the wholly distinct merits-based ground that court-martial defendants have no Sixth Amendment jury-trial rights). Instead, it argues that the Court either dismiss the petition for lack of jurisdiction or add the jurisdictional issue to the merits question presented in the petition. Whether or not the White/Bamzai brief is thus a brief in support of neither party, dismissing the petition wouldn’t actually answer the question, since dispositions of cert. petitions aren’t precedential.

Thus, even if folks find the jurisdictional argument intriguing, it seems to me that it only adds to the imperative for granting certiorari that I highlighted back in May; if the Supreme Court really does lack the constitutional authority to hear court-martial appeals, can’t we all agree that it ought to say so?