Is it time to sunset the U.S. Court of Appeals for the Armed Forces?

U.S. Court of Appeals for the
Armed Forces Courthouse

The Defense Department's establishment of the Military Justice Review Group affords an opportunity to re-evaluate basic aspects of the architecture of American military justice. One is whether the U.S. Court of Appeals for the Armed Forces ought to be preserved or its jurisdiction transferred to another court. (This is not a new issue; it was briefly raised by the DoD General Counsel during the Carter administration, in a discourse that was informed by a study of Reform of the Court of Military Appeals (also known as "the Rainbow Book" due to its pastel-colored chapters) prepared in 1979 by then-DoD attorney Andrew S. Effron. Decades later, and after distinguished service with the Senate Armed Services Committee and on the Court of Appeals, he now heads the Review Group.)

What, if any, changes ought to be made in the military appellate process involves several component issues, and what, if anything, ought to be done with respect to the Court of Appeals cannot intelligently be examined in a vacuum. With that important caveat, can a case be made that, as part of a larger overhaul of the military justice system, the court's jurisdiction should be transferred (presumably with some changes) to the U.S. Court of Appeals for the District of Columbia Circuit? Here are some thoughts to kick off the discussion:

1. The court decides about 40 cases per term on full opinion. That is less than one per judge per month. (It may well be that the current rate of grants is about right or even a bit high in terms of whether the UCMJ-required "good cause" has been shown. But whether more petitions for review should be granted -- on which access to the Supreme Court turns -- is not the issue for present purposes; the numbers are what they are.)

2. The court denies review in several hundred cases each year. These are decided without plenary briefing and oral argument. (Many petitioners for review cite no errors (the so-called "merits cases")). If court-martial appellate jurisdiction were transferred to an Article III court of appeals, these cases would almost certainly be summarily affirmed if not dismissed.

3. The court's FY15 budget is $13,723,000.

4. A review of the court's opinions reveals that few cases turn on issues truly peculiar to the military, and that even those that do could readily be adjudicated, given competent appellate advocacy, by judges without specialized knowledge. The uniformed military legal experience of the judges has varied widely, ranging from zero to very considerable but in any event rarely of recent vintage. Moreover, Congress has provided for generalist Article III judges to sit on the court by designation. Judges of the geographical circuits unquestionably deal with matters at least as arcane as military justice.

5. Having a specialized court with a small plenary docket caseload encourages attention to minutiae.

6. A number of common law countries that -- like the United States -- retain courts-martial, such as the UK, Canada, Australia, New Zealand, and Ireland, rely in whole or in major part on non-specialist judges of the regular appellate courts for the adjudication of court-martial appeals.

7. Sunsetting the court would imply no adverse judgment on its work. In 1950, there was a task to be performed in breathing life into what was, in important respects, a new system of criminal justice (even if critical elements such as the role of the commander were anything but new). That function has been performed, so despite ups and downs, Mission Accomplished (not intended ironically) may be a fair way of characterizing the court's six-decade-long trajectory. Additionally, the process of integration into the normal landscape of civilian federal criminal justice has proven inexorable, including the assimilation of the Federal Rules of Evidence through the Military Rules of Evidence and the availability of direct Supreme Court review (albeit for only about one court-martial in 10).

8. Development of a military trial bench since 1968, including in two branches a nod in the direction of fixed terms of office, makes appellate paternalism both less appropriate in principle and less necessary in fact. If paternalism ever was a proper institutional stance, it no longer plays a significant role in the court's jurisprudence and hence nothing of significance would be lost from this perspective if military appellate jurisdiction were transferred to the D.C. Circuit. Even if it were possible to compare the overall defense-friendliness of the two courts, that is not a principled basis for assigning appellate jurisdiction. If the D.C. Circuit can be trusted to dispense justice to civilian federal criminal defendants and military commission accuseds, it can be trusted to do so for court-martial accuseds.

9. If military commission accuseds are entitled (as they are) to appellate review by judges enjoying Article III protection, court-martial accuseds should be as well, but Congress has shown no recent interest in conferring Article III status on the judges of the Court of Appeals for the Armed Forces and there is no reason to expect that to change.

10. To the extent that Congress was particularly concerned about rooting out unlawful command influence when it enacted the UCMJ and created the Court of Military Appeals, doctrine on that subject is now highly developed and can be administered and further elaborated as effectively by an Article III court as by the Court of Appeals for the Armed Forces.

11. Is the D.C. Circuit the right court to which to transfer military appellate jurisdiction? Opinions on this may differ, but that court, in contrast with, for example, the U.S. Court of Appeals for the Federal Circuit, regularly hears criminal appeals from district court.

12. Federal courts are not immortal. Consider the Court of Claims (1855-1982), U.S. Court for China (1906-43); Commerce Court (1910-13), U.S. Court of Customs and Patent Appeals (1910-82), U.S. District Court for the Canal Zone (1912-82), Emergency Court of Appeals (1942-62), U.S. Court for Berlin (1955-90); Temporary Emergency Court of Appeals (1971-93), Special Court under the Regional Rail Reorganization Act of 1973 (1973-96), and Special Division of the D.C. Circuit (1978-88).

Over.