It is not surprising that the House-passed National Defense Authorization Act for Fiscal Year 2024 has attracted a lot of attention. After all, Republican Members of Congress tacked on a variety of controversial provisions—perhaps most notably, one that would bar the Pentagon from covering travel for pregnant women in uniform to obtain abortions and other reproductive health care; a second that would limit access to gender-affirming care for transgender personnel; and yet another that would shut down Department of Defense diversity, equity and inclusion programs.
In contrast, no attention has been paid to another provision—section 541—that is welcome and long overdue. It would, for the first time, give servicemembers who have been convicted by courts-martial the same access to direct appellate review by the Supreme Court of their convictions and sentences that all other federal and state criminal defendants (including the handful convicted by the military commissions at Guantánamo) have long enjoyed. It is important that the Senate also approve this provision—and that the inevitable conference committee keep it in the final bill.
Nearly 40 years ago, President Ronald Reagan signed the Military Justice Act of 1983. For the first time, military personnel whose cases had been reviewed by the then U.S. Court of Military Appeals (now the U.S. Court of Appeals for the Armed Forces) were afforded a right to ask for discretionary review by the Supreme Court (as was the government in cases in which military defendants had prevailed). Before then, the only way such an accused could have their case heard by the Justices was by suing in federal district court or the Court of Federal Claims for collateral review of the conviction. The Supreme Court heard a few big cases through this process from time to time, but collateral review is unavailable for any claims that received “full and fair consideration” from the military courts—meaning that, for many servicemembers convicted by courts-martial, no Article III court could review their case.
Enter the 1983 law. The Pentagon was concerned that the military appellate courts might issue a decision that was adverse to the government and the government would have no opportunity to have it reviewed by the Supreme Court. Thus, self-interest led the Defense Department to propose a measure that would, at long last, have afforded both parties at least a chance of obtaining discretionary review by the Supreme Court. The fly in the ointment, however, was that the measure Congress passed in 1983 excluded the many cases in which the highest (civilian) court in the military justice system refused to grant discretionary review. As is true with the U.S. Supreme Court’s docket today, these discretionary petitions for review form the lion’s share of military appeals.
Since the 1983 Military Justice Act took effect, the Supreme Court has received scores of petitions seeking certiorari in military appeals, but it has heard a grand total of 10 appeals from the military courts in 40 years—and only one from a servicemember’s petition (as opposed to a government petition) since 1996. In most cases, the Solicitor General simply files a one-page letter instead of a brief in opposition to the petition, and the Justices typically do not order submission of a government brief. In other words, the current arrangement has not been at all burdensome for the government. And unlike in 1983, when the Supreme Court still had a robust docket of appeals it had to hear, today (and since 1988), it exercises virtually unlimited discretion over its entire docket—so that the justification for limiting its jurisdiction over courts-martial (to limit undue crowding of its mandatory docket) no longer holds water.
Nor has this arrangement been beneficial to virtually all convicted servicemembers. With the Court of Appeals for the Armed Forces agreeing to review only a few dozen cases each year, the typical military appeal ends in the service-branch courts of criminal appeals—intermediate appeals courts staffed by military officers with mere three-year terms of office —and hence limited independence.
There have been repeated efforts to fix this flaw. There is of course no lobby with an interest. And bogus and irrelevant claims have been made that putting military defendants on an equal footing with others would be costly and unnecessary because their cases are often insubstantial or do not satisfy the Supreme Court’s exacting criteria for granting certiorari. The short answer to these claims is that in such cases, the Solicitor General’s office can simply submit a letter instead of a brief, at little or no expense, as it currently does in the small minority of military appeals that are currently eligible for certiorari. Our view is that if a civilian litigant can ask for certiorari, a military one should be able to do so as well—especially when you consider that military personnel literally put their lives on the line for the rest of us.
It has been a lively few years for the U.S. military justice system. In 2018 the Supreme Court decided an important case—Ortiz v. United States—concerning the constitutionality of Congress’s extension of the certiorari jurisdiction to military cases (yes, it is constitutional), and the Court (over a dissent by Justices Samuel Alito and Neil Gorsuch) had kind words to say about the military justice system in general. (Disclosure: One of us was counsel of record for the petitioner in Ortiz.) In addition, spurred by widespread concern over the persistent pattern of sexual assault and related misconduct in the armed forces, Congress dramatically changed the military justice system so that charging decisions in those and a number of other categories of serious crime would be made by independent uniformed lawyers rather than nonlawyer commanders. Those changes, spearheaded by Sen. Kirsten Gillibrand and former Rep. Jackie Speier, among others, brought the military justice system significantly closer to the civilian model with which all Americans are familiar, in which lawyer-prosecutors play a decisive role in case-selection.
The Senate should continue on this path of positive reform by finally fixing the unfair limitation on GI access to the nation’s highest court. There is no valid reason, after 40 years, to continue on the discriminatory, exceedingly parsimonious approach Congress took back in 1983. Senators should strongly support section 541 both as the bill makes its way through the upper chamber and when the NDAA comes up for conference between the two chambers. Over the past 40 years we have learned how the system has failed U.S. servicemembers. The Supreme Court access part of the system is broken, and it’s high time to fix it.