On Friday, in a 7–2 decision written by Justice Kagan, the Supreme Court held in Ortiz v. United States that Judge Martin Mitchell could simultaneously serve as a judge on the Court of Military Commission Review (CMCR) and the Air Force’s Court of Criminal Appeals (CCA) without violating Congress’s general “dual-officeholding ban” on military officers taking up civilian offices. The court also held, in what constituted the bulk of the majority opinion as well as the focus of Justice Thomas’s concurrence and Justice Alito’s dissent, that it had appellate jurisdiction over the Court of Appeals for the Armed Forces (CAAF) in a manner consistent with Article III.
This post will begin with a bit of background on the case, then turn to the jurisdictional dispute, and conclude with a discussion of how Kagan resolved the statutory question.
Keanu Ortiz was convicted of possessing and distributing child pornography in violation of the Uniform Code of Military Justice. Before reaching the Supreme Court, he passed through each standard stage of the military’s legal system: He was first convicted by a court-martial; the CCA for the Air Force affirmed his conviction; and the CAAF denied his argument for another appeal. At the CAAF, Ortiz argued that he deserved a second shot at an appeal to a different CCA panel because his first panel was constituted in violation of both federal law and the Constitution.
(The Supreme Court consolidated Ortiz’s case with two other cases, Cox v. United States and Dalmazzi v. United States. This post only refers to Ortiz because the Court dismissed the other consolidated cases as improvidently granted, on the ground they “raise[d] issues of statutory jurisdiction that our disposition today makes it unnecessary to resolve.”).
The big issue, from Ortiz’s perspective, was that Judge Mitchell, a colonel in the Air Force, was a judge on both the CMCR as well as the Air Force’s CCA—and, what’s more, was a member on the panel that heard his case. Holding these two jobs at the same time, reasoned Ortiz, was contrary to law twice over. First, under 10 U.S.C §973(b), an active-duty military officer “may not hold, or exercise the functions of,” certain “civil office[s]” in the federal government. Mitchell was indisputably an active-duty military officer and, according to Ortiz, a CMCR judgeship was a “civil office.” Second, Ortiz argued, CMCR judges are“principal officers” under the Constitution—and the Appointments Clause contains functionalist prohibitions on a principal officer (like a CMCR judge) simultaneously working alongside a collection of inferior offices (like a CMCR judge’s colleagues on a CCA panel).
As discussed more below, the Supreme Court ended up focusing principally on an issue raised by neither of the parties, but instead by Professor Aditya Bamzai: Was the court’s appellate jurisdiction over the CAAF, conferred by statute, consistent with Article III? When it turned to the statutory questions, the court resolved the case on narrow grounds. But before turning to those points, it is useful to understand at least the range of possible statutory issues implicated by the petition as they frame the court’s ultimate resolution of the case.
Ortiz concerned a Rube Goldberg machine of statutory interpretation. (For a fuller discussion of all the potential issues and arguments, see here.) First, in order for there to be a dual-officeholding ban issue, a CMCR judgeship must be a “civil office,” a term that lacks a statutory definition. Second, even if such positions were civil offices, the dual-officeholding ban contained a carve-out for those positions Congress had “authorized by law”; something the statute creating the CMCR may or may not have done for those in Mitchell’s position. And third, even if CMCR judges held civil offices without being authorized by law, the case raised the question of what to do with the then-at-issue CCA panel decisions; that is, the parties also disagreed as to whether those decisions should be invalidated, Mitchell should be immediately discharged from the military, or some other remedy should be granted.
The Article III Question
Article III, Section 2 of the Constitution defines the jurisdiction of the Supreme Court. “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Federal courts are courts of limited jurisdiction, and generally must have both statutory and constitutional authorization to hear a case. Here, by way of 29 U.S.C. §1259, “[d]ecisions of the [CAAF] may be reviewed by the Supreme Court by writ of certiorari.” So the statutory prong is clearly satisfied. As to the constitutional prong, all parties agreed that cases arising out of the CAAF cannot fall within the Court’s original jurisdiction (there are no affected ambassadors, etc.). Thus, as Kagan notes, the “real issue is whether our appellate jurisdiction can cover such cases.” According to Bamzai (as well as Alito and Gorsuch), the answer is no: The CAAF is not a “court,” in the constitutional sense, any more than was James Madison in Marbury v. Madison was or are the various executive branch agencies whose decisions cannot be appealed directly to the Supreme Court. And without a court, there is no appeal. As such, to hear the case, the Supreme Court would have to expand its original jurisdiction—something that, since Chief Justice Marshall’s opinion in Marbury, we know cannot be done.
Kagan, writing for six other justices, engages with Bamzai’s argument head-on and, over fourteen pages, makes the case that “the judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex.” The big point here—and the main source of dispute between Kagan and Alito—is whether the CAAF fundamentally exercises judicial or executive power. If the former, the court’s appellate jurisdiction sits on sure footing. If the latter, not so much (recall the administrative agency point above).
First, Kagan explains that the “essential character” of military courts is judicial. Military courts follow procedural protections substantially similar to civilian courts; issue judgments that have effect under the Double Jeopardy Clause and extend to a wide-reach of traditional criminal offenses (consider Ortiz’s prosecution); cover a jurisdiction that mirrors federal and state courts; and have the power to both imprison and execute defendants, among other traits.
Second, this system, created by Congress under its Article I power “[t]o make Rules for the Government and Regulation of the land and naval Forces,” closely resembles the other non-Article III tribunals that the Supreme Court sits above as part of its appellate jurisdiction. A tribunal need not be established under Article III of the Constitution to be a court in the constitutional sense. For instance, nobody doubts that the Supreme Court can permissibly take appeals from state courts, even though such courts were not established under Article III. Similarly, the Supreme Court has upheld its appellate jurisdiction over territorial courts and courts for the District of Columbia, notwithstanding their respective lack of Article III status.
According to Kagan, the “non-Article III court-martial system stands on much the same footing as territorial and D.C. courts, as we have often noted.” Military courts, like those listed above, “rest on an expansive constitutional delegation” and are part of the “triad of ‘specialized areas having particularized needs’ in which Article III ‘gives way to accommodate plenary grants of power to Congress.’” Arguments to the contrary—namely, that territorial courts and D.C. courts “exercise power over ‘discrete geographic areas’”—largely identify distinctions without a difference. The CAAF has the essential aspects of the judicial character, which are not contingent on territorial control. “[T]he CAAF is a permanent ‘court of record’ created by Congress; it stands at the acme of a firmly entrenched judicial system that exercises broad jurisdiction in accordance with established rules and procedures; and its own decisions are final (except if we review and reverse them).”
Altogether, Kagan writes, the CAAF here “rendered [an] inherently judicial decision,” meaning that the Supreme Court can therefore hear the appeal. As a final point, she makes clear that the decision in Ortiz has no bearing on whether, as Bamzai argued, hearing cases from the CAAF necessarily means that the Supreme Court can hear direct appeals from administrative agencies. “If Congress were to grant us appellate jurisdiction over decisions of newer entities advancing an administrative (rather than judicial) mission, the question would be different—and the answer not found in this opinion.”
Thomas concurred and wrote separately to explain why the court’s Article III analysis was “consistent with the Founders’ understanding of judicial power—specifically, the distinction they drew between public and private rights.” Echoing the majority opinion, Thomas underscores that the “Court’s appellate jurisdiction requires the exercise of a judicial power, not necessarily ‘the judicial Power of the United States’ that Article III vests exclusively in the federal courts” (i.e. state, territorial, or D.C. courts). When a tribunal exercises authority over private rights—that is, rights concerning life, liberty, or property, as opposed to public rights that “belon[g] to the people at large”—it is exercising judicial power. Because CAAF clearly has authority over private rights, the question then becomes whether the Constitution permits this exercise of judicial power outside of the confines of Article III. Turning to the historical background of courts-martial as well as the nature of CAAF proceedings, Thomas concludes that “military courts are better thought of as an ‘exception’ or ‘carve-out’ from the Vesting Clause of Article III, rather than an entity that does not implicate the Vesting Clause because it does not exercise judicial power in the first place.”
Alito, in a dissent joined by Gorsuch, argues that the Supreme Court lacks jurisdiction because the CAAF exercises executive rather than judicial power. He emphasizes that “in order to create a ‘case’ that Article III permits us to review on appeal, a litigant must have first ‘submitted’ the dispute to another tribunal that was ‘capable’ of exercising the ‘judicial power’ of the government to which the tribunal belongs.” The CAAF, as an executive branch entity, cannot do this.
Three features of Alito’s dissent bear particular mention. First, he maintains that the majority skipped too quickly over centuries of precedent that guard against taking appeals directly from the executive branch. From the Court of Claims (where the secretary of the treasury, at one point, had the ability to revise a court’s decision), to direct habeas petitions, to Civil War-era military commissions, the Supreme Court regularly abstained from acting as a direct supervisor to the executive branch. Largely on separation of powers grounds, the court had fashioned (until now, per Alito) a categorical rule that it “may not hear an appeal directly from any tribunal that has not been lawfully vested with judicial power.” Second, and relatedly, Alito argues that the CAAF is meaningfully distinct from tribunals like state or territorial courts, who do exercise judicial power outside of Article III. This because “Congress enjoys a unique authority to create governments for the Territories and the District of Columbia and to confer on the various branches of those governments powers that are distinct from the legislative, executive, and judicial power of the United States.” As such, because military justice lacks a hook to some inherent sovereign power—unlike, say, states, territories, or D.C.—and rests instead within the military command structure of Article II, Kagan’s analogies are inapposite.
Lastly, the CAAF is not a court even under on the majority’s own argument. In particular, it lacks a “judicial character” in practice because the executive branch can exercise a meaningful measure of influence or power over its proceedings. As Alito observes, the president can remove members of the CAAF for cause; the secretaries of defense, homeland security, and the military departments meet annually to oversee the CAAF’s performance; and, at least in instances of death sentences or dismissal from the armed forces, “the CAAF’s decisions are not final,” but rather receive some degree of executive branch review. In sum, these sorts of longstanding “revisory powers” indicate two fundamental points: The CAAF is and has always been “an agent of executive power to aid the Commander in Chief” and, as such, cannot also be a “court” in the constitutional sense for the purposes of establishing appellate jurisdiction.
The Statutory Question
Maintaining that the Supreme Court did not have jurisdiction to hear the case at all, Alito does not address the statutory questions presented by Ortiz. Thomas also does not discuss them separately, joining the majority opinion in full.
Kagan rejects both Ortiz’s argument under the dual-officeholding ban and his argument under the Appointments Clause. On the former, the majority finds that many of the thornier statutory issues can be avoided because Congress had authorized Mitchell to sit on both the CCA and the CMCR. As such, the Supreme Court did not need to address whether a CMCR judgeship was a “civil office” or how the remedial question would be resolved.
To understand this point, a bit of context is necessary. Under the Military Commissions Act of 2009, there are two paths to becoming a CMCR judge. First, the secretary of defense may “assign persons who are appellate military judges to be judges on the [CMCR],” as long as such person is already a “commissioned officer of the armed forces.” Second, the president can alternatively “appoint, by and with the advice of the Senate, additional judges” who need not be military officers. Originally, Mitchell was assigned to the CMCR by the secretary of defense. But a case before the U.S. Court of Appeals for the D.C. Circuit in an unrelated matter raised concerns about whether such an assignment could be squared with the Appointments Clause. The appeals court suggested that the president could avoid the issue entirely by simply appointing the judges. President Obama followed this advice, and Mitchell was soon after appointed, “[i]n accordance with [his] continued status as [a CMCR] judge pursuant to [his] assignment by the Secretary of Defense.”
According to Ortiz, this created a problem: While assignees were clearly authorized by Congress to sit on the CMCR, appointees lacked comparable statutory authorization, and thus found themselves holding a second position not green-lit by Congress. In Ortiz’s reading, while an assignee “exercise[s] additional duties” under the statute, he or she does not “hold” a second position; it is only the president’s appointment that elevates the assignee/appointee to “hold[ing]” that office, thus implicating the dual-officeholding ban. Kagan disagrees. Looking to the plain text of the dual-officeholding statute, the Court underscored that the prohibition was “indifferent” as to whether a military officer held a certain civil office or simply exercised its functions. Therefore, whether an appointment technically created a “new office” was of no import (although the Court did cast doubt on this reading of the statute). All that mattered, Kagan explains, was that Congress had authorized assignees and Mitchell had been assigned. After that, “the President’s later appointment of [him] made not a whit of difference,” because it simply ratified the status quo and kept Judge Mitchell in a position he was already authorized to hold.
As to the Appointments Clause argument, Kagan dismisses it quickly. “This Court has never read the Appointments Clause to impose rules about dual service, separate and distinct from methods of appointment. Nor has it ever recognized principles of ‘incongruity’ or ‘incompatibility’ to test the permissibility of holding two offices.” And even if the Court were to embark on new constitutional territory, this case would be the wrong vehicle. “Ortiz tells no plausible story about how Judge Mitchell’s service on the CMCR would result in ‘undue influence’ on his CCA colleagues.”
Two final points are worth noting. First, this decision leaves open a number of issues. Recall that the Supreme Court expressed no opinion on many of the statutory questions noted at the onset, grounding its decision instead in the fact that Mitchell had been previously assigned to the CMCR before his appointment. For judges with a different path to the tribunal, questions linger as to whether their service conflicts with the dual-officeholding ban. Second, outside the context of military justice, the Supreme Court’s decision in Ortiz will likely be a major touchstone in future litigation about the court’s Article III jurisdiction—namely, whether administrative agencies may one day be able to appeal directly to the Supreme Court without an intermediate Article III tribunal.