|Prof. Steve Vladeck|
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the case for certiorari in Akbar–so the Justices can confront the issue squarely, rather than indirectly through non-precedential dispositions of cert petitions.The post is recommended reading for anyone who is concerned with federal courts or court-martial appeals. The government has not responded to the amicus brief. Whether the Justices will heed Prof. Vladeck's call for them to resolve the jurisdictional issue directly rather than sub silentio of course remains to be seen. Similar calls (by the National Institute of Military Justice) for the Court to clarify whether, as a statutory matter, it has certiorari jurisdiction over ungranted issues in granted CAAF cases have gone unheeded.
Full disclosure: the Editor is counsel of record for the petitioner in Sullivan v. United States, a 2015 decision of the U.S. Court of Appeals for the Armed Forces that is the subject of a pending petition for a writ of certiorari.