Monday, November 20, 2017

Department of Serendipity

From the time Congress first extended the certiorari jurisdiction of the Supreme Court to reach decisions of the then-U.S. Court of Military Appeals, certiorari has been limited by statute to cases in which that court granted discretionary review. This excludes the lion's share of courts-martial and is a limitation not imposed on state, civilian federal, and military commission cases.

The following, discovered serendipitously, appears on page 34 of Senate Report No. 98-53, April 5, 1983, which accompanied the Military Justice Act of 1983:
In the federal civilian system, of course, any criminal conviction is ultimately subject to Supreme Court review via a petition for a writ of certiorari. Where appropriate the Committee wishes to achieve parity with the civilian system to the maximum extent practicable, but recognizes that the unique nature of the military justice system dictates that the Court of Military Appeals should remain the principle interpreter of the UCMJ and at least at the outset, restricting direct access to the Supreme Court to cases the Court of Military Appeals has agreed to hear is necessary as a practical matter. [Emphasis added.]
The notion that it was somehow impracticable (aside from politically) for military accuseds to have the same access to the Nation's highest court as other criminal defendants was ludicrous at the time and it remains ludicrous. But even if that were not the case, might we not agree that after 34 years we are no longer at "the outset" and that the time has come to set this right?


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