Certificates for review

Under the UCMJ, the Judge Advocates General have power to certify cases for review by the U.S. Court of Appeals for the Armed Forces. They typically exercise this power for the benefit of the prosecution. A check of the court's annual reports reveals that over the last 10 years, an average of 7.3 certificates have been filed, ranging from a low of two in 2018 to a high of 12 in 2014. In the three most recent years, the average number of certificates was a mere 4.3. 

When Congress revisits the appellate stages of the military justice system (which it should), it might want to abolish this power, which made more sense when the Code was new and guidance was needed on many points of law. The obvious downside was that the power was and is exercised asymmetrically. What is more, empowering the TJAGs to control a part of the court's docket (unless the issue certified was moot, unripe, academic or would otherwise result in an advisory opinion) detracts from the court's actual or apparent independence.

The certification provision could wisely be replaced by an arrangement by which either side could appeal as of right from final decisions.