Curtain raiser on the Dalmazzi argument

Amy Howe has written this curtain raiser for SCOTUSblog in anticipation of next Tuesday's Supreme Court hearing in the case arising from the dual service of four judges on the U.S. Court of Military Commission Review and service Courts of Criminal Appeals. She concludes with this observation:

High-profile cases at the Supreme Court can often attract dozens of “friend of the court” briefs, to explain or elaborate on various points that could be useful to the justices. This case has drawn only one “friend of the court” brief, but that lone brief could prove to be very significant. Filed by Aditya Bamzai, a University of Virginia law professor, it questions whether the Supreme Court has the power to review decisions by the CAAF at all. Bamzai points to the landmark 1803 case of Marbury v. Madison, best known for establishing the doctrine that courts can (and should) decide whether laws passed by Congress violate the Constitution. Marbury also makes clear, Bamzai contends, that under the Constitution, the Supreme Court can only review decisions by the CAAF if they are “appeals.” But because the CAAF is part of the executive branch, he concludes, it does not exercise real judicial power. With both the servicemembers and the federal government in agreement that the Supreme Court has the authority to review CAAF decisions, the Supreme Court last week took the relatively unusual step of allowing Bamzai to participate in the oral argument. Bamzai will have just 10 of the 70 minutes of argument time, but they could be a pivotal 10 minutes: If the justices agree with him, it would scuttle the case. Is this question a serious concern, or are the justices making sure that all of the issues are fully vetted? We’ll know more after next week’s oral argument.

Full disclosure: the Editor is one of the attorneys for the petitioners.