Courts Martial and Judicial Recusals (Part 4)

Justice Kagan continued: The non-Article III court-martial system stands on much the same footing as territorial and D.C. courts.  All three rest on an expansive constitutional delegation, have deep historical roots, and perform an inherently judicial role. Thus, in Palmore, this Court viewed the military, territories, and District as “specialized areas having particularized needs” in which Article III “gives way to accommodate plenary grants of power to Congress.” Id., at 408. Bamzai does not provide a sufficient reason to divorce military courts from territorial and D.C. courts when it comes to defining this Court’s appellate jurisdiction.

He first relies on the fact that territorial and D.C. courts exercise power over discrete geographic areas, while military courts do not. But this distinction does not matter to the jurisdictional inquiry. His second argument focuses on the fact that the CAAF is in the Executive Branch. In his view, two of the Court’s precedents—Ex parte Vallandigham, 1 Wall. 243, and Marbury, 1 Cranch 137—show that the Court may never accept appellate jurisdiction from any person or body within that branch. As to Vallandigham, that case goes to show only that not every military tribunal is alike. Unlike the military commission in Vallandigham, which lacked “judicial character,” 1 Wall., at 253, the CAAF is a permanent court of record established by Congress, and its decisions are final unless the Court reviews and reverses them.  As to Marbury, James Madison’s failure to transmit William Marbury’s commission was not a judicial decision by a court. Here, by contrast, three constitutionally rooted courts rendered inherently judicial decisions.

Justice Kagan notes relevant distinctions between the case at bar and those cited by the amicus whose view is that the Supreme Court of the United States has no jurisdiction to hear an appeal from a courts-martial case.  The age of the cases cited by amicus and the lack of any supporting precedent with the last 150 years tends to undermine the amicus position. Vallandigham is an 1863 case. Marbury was decided in 1803.