Academic journal article Harvard Law Review

Article III - Federal Courts - Ortiz V. United States

Academic journal article Harvard Law Review

Article III - Federal Courts - Ortiz V. United States

Article excerpt

There are two ways to get to the Supreme Court. Under Article III, a small set of cases qualify for the Court's original jurisdiction, and for "all the other Cases" the Court can hear, there's "appellate Jurisdiction." (1) But Article III never defines this term; that is, it doesn't specify where an appeal has to come from. (2) Even so, since Marbury, (3) the Court has held that an appeal can't arise from just anywhere. Instead, the "essential criterion" for appellate jurisdiction is that it "revises and corrects the proceedings in a [case] already instituted." (4) And for there to be a "case," there has to have been the exercise of "judicial power." (5)

The difficulty here is that not every entity that looks like or is called a "court" actually exercises "judicial power." (6) Put differently, the old birdwatching adage that when you "see a bird that walks, swims, and quacks like a duck, you call that bird a duck" doesn't carry over to figuring out the sorts of tribunals that can "create cases" for the Court to then directly review on appeal. To be sure, there are some easy examples. Lower federal courts can exercise "judicial power" and thus create cases. (7) The same holds for state courts. (8) But, when it comes to other non-Article III tribunals, the terrain gets murkier. For instance, the Court has ruled that it can take appeals directly from territorial courts or courts for the District of Columbia because they exercise "judicial power." (9) At the same time, the Court has held it cannot take direct appeals from tribunals like the old Court of Claims. (10) What exactly separates the mallards from the ducks has vexed federal courts. (11)

Last Term, in Ortiz v. United States, (12) the Supreme Court held that the "judicial character and constitutional pedigree" (13) of the Court of Appeals for the Armed Forces (CAAF) permitted the Court to "review decisions of the CAAF" directly on appeal "even though it is not an Article III court." (14) In so doing, the majority voiced little concern about the Executive's statutory and constitutional entanglement with the military's top court. Unlike state courts, for instance, the Executive must approve certain sentences affirmed by the CAAF, and the President can remove CAAF judges under broad circumstances. (15) On paper, this seems at odds with core separation of powers principles the Court has developed for what it means to exercise "judicial power"; namely, that judicial decisions must be final, enforceable, and independent. (16) However, these features of the CAAF, while conspicuous in theory, have been rarely if ever exercised in practice. As such, Ortiz may stand for the proposition that the mere specter of Executive revision, influence, or involvement--without more--will not render an otherwise capable tribunal incapable of exercising "judicial power" outside of Article III.

At first, though, Ortiz wasn't about whether the Court could exercise appellate jurisdiction over the CAAF. In fact, prior to Ortiz, the Court had already taken nine cases from the military's top court without pausing over its ability to do so. (17) Ortiz instead started as a case about Congress's "dual office-holding" ban and Article II's Appointments Clause. The ban was originally enacted in 1870, (18) and its core prohibition remains the law today: unless "otherwise authorized by law," an active-duty military officer typically "may not hold, or exercise the functions of ... civil office[s]" in the federal government. (19) In 2017, Keanu Ortiz, an Airman First Class in the Air Force, petitioned the Supreme Court that parts of the military's justice system violated this Act. (20)

Ortiz had been convicted by a court-martial for a host of child pornography charges. (21) A panel of the Air Force Court of Criminal Appeals (CCA), the intermediate body between Air Force courts-martial and the CAAF, affirmed his conviction in June 2016. (22) Critically, one panel member--Judge Martin Mitchell--was also serving on the Court of Military Commission Review (CMCR), the appellate tribunal between the Military Commissions and D. …

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