Memo to Congress: unlock the courthouse door

Andreas Kuersten

Andreas Kuersten, a law clerk at the U.S. Court of Appeals for the Armed Forces, has written a timely post for Just Security, concerning the dearth of military cases that reach the Supreme Court. Excerpt:

CAAF principally conducts its appellate function through discretionary review, similar to the Supreme Court. As such, apart from a few exceptions, it controls its docket by granting or denying petitions for review as it sees fit. And Article 67a makes the exercise of CAAF’s discretion determinative of the Supreme Court’s ability to grant writs of certiorari to military cases on direct appeal. Put more simply, CAAF exercises almost total control over the pool of military cases to which the Supreme Court might have the option of granting review. 

With this in mind, CAAF only issued 83 dispositions during FY2015 that could theoretically be acted on by the Supreme Court, and only 72 filings during this timeframe will appear before CAAF in the future to be disposed of in some fashion that could be reviewed by the Court. Moreover, the number of petitions for certiorari that are actually submitted from military cases are dramatically lower than the total number of cases from which such submissions are possible. As an example, only four petitions came out of the Navy in FY2014, and zero did in FY2015. In turn, only one came out of the Air Force in FY2014, and two did in FY2015. These numbers represent remarkable drawdowns from the several hundred cases that seek CAAF review annually, and a severe limiting of the number of cases that the Supreme Court could potentially review.

If Congress, in considering the Obama administration's proposed military justice legislation, leaves intact the current indefensible limit on access to the Supreme Court, it will dark day for GIs.