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Judicial Edge
Did military courts just lose their right to be different? Five takeaways from Ortiz v. United States

By Col. Linda Strite Murnane (Ret.), USAF

In 1974, in Parker v. Levy, 417 US 733, the Supreme Court of the United States held that the First Amendment of the United States Constitution can be applied differently in the military context because of the distinctive character and purpose of the Uniform Code of Military Justice. The court said military court proceedings are different because they are discipline based. That distinction validated the quasi-judicial role of commanding officers and the need for service members to follow the orders of superiors.

 

The Supreme Court’s decision last month in Ortiz v. United States revisited the nature of military courts, and, perhaps unintentionally, the decision suggests that the court thinks military and civilian courts are the same. If that is the case, then the question arises of whether the role of the commander within the military justice system remains central, and whether military justice remains focused primarily on adherence to military discipline and command and control.

The case

Keanu Ortiz, an airman first class, was convicted by a court-martial of possessing and distributing child pornography. The Air Force Court of Criminal Appeals heard his appeal. A member of the appeals panel, Col. Martin Mitchell, held a simultaneous appointment to the U.S. Court of Military Commission Review, part of the federal executive branch. Ortiz and two others argued that this disqualified Mitchell from serving on the appeals court and invalidated the court’s decision. The appeals court rejected this argument, and the Supreme Court, in a 7–2 decision, agreed.

However, Justice Kagan’s majority opinion included an extensive discussion of the jurisdiction of the  Supreme Court to hear appeals from the Court of Appeals for the Armed Forces. This issue arose from an amicus curiae brief submitted by University of Virginia law professor Aditya Bamzai. Bamzai argued that cases decided by the Court of Appeals for the Armed Forces do not fall within Article III’s grant of appellate jurisdiction to the Supreme Court because the Court of Appeals for the Armed Forces is not an Article III court but rather is part of the federal executive branch.

Five takeaways

  1. The Supreme Court now believes it has jurisdiction to hear appeals within the military justice system because the military court-martial process is so similar to the civilian non-Article III courts whose cases it already reviews. For example, it already reviews cases tried in District of Columbia courts.
  2. Contrary to what it decided in Parker v. Levy, the court now thinks there is nothing unique about military courts-martial.
  3. If courts-martial aren’t unique, that may call into question the role of military commanders within the military justice system. For a fuller analysis, see “Are Military Courts Really Just Like Civilian Criminal Courts” by Major Dan Maurer (Lawfare, July 13, 2018).
  4. Justices Alito and Gorsuch disagreed. They said courts-martial and regular courts may look alike, but the “fundamental nature” of the military justice system is as an “instrument of military discipline.” But they lost the argument.
  5. Does this spell the end for the involvement of commanding officers in military justice? The history of the Uniform Code of Military Justice and the evolution of the court-martial system into one that provides comparable protections of the rights of parties does not warrant the wholesale abandonment of the basic need for the court-martial process. The UCMJ has, first and foremost, always been a tool to ensure a disciplined armed force responsive to the needs of the nation and its commanders. This decision should not erode that key distinction.

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Linda Strite Murnane is the immediate past chair of the Judicial Division of the American Bar Association. She served 10 years as a U.S. military judge, including four years as a chief circuit military judge.

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