. . . We may take the recent, dramatic changes to the UCMJ by the Military Justice Act of 2016 as further “civilianization” of military law and circumstantial evidence that the circumstances once justifying the ancient lineage of the commander’s judicial power are slowly waning.It would be wrong to describe this as a case of "burning the village in order to save it," since at issue was not the validity of the military justice system, but simply the constitutionality of direct appellate review of decisions of the U.S. Court of Appeals for the Armed Forces. Still, there are implications for commander-centric military justice. Hats off to Major Maurer for calling attention to them.
If the court is serious that commanders do not play a necessary function in making this system “judicial” in character, and that commanders’ valid reasons for good order and discipline are of a secondary consideration, then arguably there is no practical or philosophically sound reason for keeping commanders in the military justice decision loop at all, replacing them with either judge advocates or civilian criminal justice institutions. Ordering searches and seizures, compelling pretrial confinement, preferring and referring charges, convening courts-martial, and selecting panel members are now on the table as potential areas in which commanders should see their discretionary power (their “command decision” authority over legal matters) ebb, if we take the court’s meaning to its natural conclusion.
Even though this is not the holding of the case or a rule that rings with precedential value, the Ortiz argument surely does give opponents of the current structure a good argument for changing it, and should cause us to question whether Parker remains authoritative on the meaning and purpose of military law. And as [Prof. Stephen I.] Vladeck’s essay suggested, Ortiz may be a “harbinger of increased interest in military justice by the Justices themselves.” (Not an unwelcome development, given the range of ways in which the Constitution is said, by the CAAF, to apply differently to this separate “community.”) These are the unintended consequences of the court’s defense of its jurisdiction over the CAAF and was a missed opportunity for [Justice Samuel] Alito and [Prof. Aditya] Bamzai to remind the court of its own entrenched characterization of military criminal law.