Vladeck on "the new military federalism"

Prof. Steve Vladeck

Global Military Justice Reform contributor (and prolific University of Texas law professor) Steve Vladeck has written this must-read post for the Harvard Law Review Blog about what he calls "The New Military Federalism." Here is what he says about limits on military appellate jurisdiction, taking friendly issue with the account in Justice Elena Kagan's opinion in Ortiz:

Despite Justice Kagan’s suggestion in Ortiz that courts-martial today bring with them “an appellate process . . . that replicates the judicial apparatus found in most States,” the analogy is quite a bit more complicated—and its implications not nearly as obvious.

Among other things, the trial courts in the military are not courts of record; only some convictions by court-martial can even be appealed to the service-branch appeals courts; those intermediate appeals courts do a substantial percentage of their work summarily; and CAAF—the “Supreme Court of the military justice system”—conducts plenary review in no more than 40 cases each year, in the majority of which it engages in exceptionally modest error correction.

And whereas the Supreme Court’s jurisdiction over state courts allows it to directly review rulings by intermediate state courts when the state court of last resort has declined to exercise discretionary jurisdiction, the same is not true for CAAF. Not only can the Supreme Court only review “decisions” by CAAF, but it can only review such decisions in capital cases, cases certified to CAAF by a service-branch Judge Advocate General, or cases in which CAAF granted a discretionary petition for review or otherwise “granted relief.” In other words, unlike what’s true for criminal appeals raising federal questions from every other jurisdiction in the country, CAAF has the power to foreclose the Supreme Court’s direct appellate review, at least in non-capital cases. (In Dalmazzi and Cox—the two cases dismissed as improvidently granted in light of Ortiz—the Court ducked an important question about whether it can review decisions in which CAAF initially grants review then hears argument and issues a published opinion at the end of which it vacates its prior grant of review.)

What this means in practice is that there are practical and structural reasons for the Justices to eschew application of federalism-like principles to their relationship with CAAF. In point of fact, there are plenty of cases that the Court can take from CAAF but doesn’t, and there are even more cases that it can’t take but otherwise should.

The editor (who -- full disclosure -- was among the petitioner's counsel in Ortiz) would add a further dimension: the Solicitor General's Office takes the position that only "issues" on which CAAF has granted review are eligible for Supreme Court review on certiorari, so an ungranted issue in a case in which CAAF granted review on some other issue is outside the Supreme Court's jurisdiction. This is plainly wrong given the text of the statute and the legislative history but the Supreme Court has yet to confront, much less resolve, the matter. The SG should abandon his position not only because it is legally wrong as a matter of statutory construction but because it violates the Court's own view, expressed in Denedo, that the congressional grant of certiorari jurisdiction over CAAF should not be read "parsimoniously," and, most importantly, is just plain unfair. This needs to be fixed yesterday.