114. History, Tradition, and the "Short-Martial"
From the Founding until 2018, servicemembers had a right to be tried by a panel of fellow servicemembers. A new cert. petition asks whether Congress violated due process when it took that right away.
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.
Every Monday, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):
I wanted to use today’s “Long Read” to go into a bit more detail about a cert. petition that my co-counsel and I filed on Friday—which asks the justices to take up a constitutional challenge to the military’s novel use, starting in 2019, of mandatory bench trials for an array of serious offenses.1 The petition presents (what we think is) an interesting test case for the justices’ recent commitment to “history and tradition” in constitutional analysis. Here, the “history and tradition” of military justice unambiguously support a right to be tried by a multi-member panel of fellow servicemembers dating all the way back to (indeed, before) the Founding. And, as noted below, whether there are any circumstances in which Congress should be allowed to depart downward from what had historically been the court-martial’s irreducible procedural minimum, our view is that the Court ought to take up the case, captioned Wheeler v. United States, because the only justification Congress mustered for departing from that history and tradition here was “efficiency.”
But first, the news.
On the Docket
The Court made a fair amount of news last week, highlighted by Wednesday’s order granting plenary review, on a very expedited basis, of the constitutional challenge to the anti-TikTok statute. The Court will hear argument on Friday, January 10—and, I suspect, will rule shortly thereafter at least on the two pending emergency applications, if not the merits. For much more about that case (and the Court’s moves therein), see last Thursday’s bonus issue.
Just before the TikTok order came down, the justices also granted certiorari in a quietly important Medicaid/abortion-related dispute out of South Carolina—in which the Fourth Circuit had held, joining three of its sister circuits, that the provision in the Medicaid statute that allows Medicaid beneficiaries to freely choose among qualified healthcare providers can be enforced by those beneficiaries in suits under 42 U.S.C. § 1983 against state officers (I’ve written before about how much harder the Supreme Court has made it to enforce these kinds of statutory rights).
The twist in this case is that the individual beneficiary sought contraceptive care from Planned Parenthood. Although Medicaid covers contraceptive care (but not abortions), in 2018, South Carolina barred any provider that performs abortions (which can only be for non-Medicaid beneficiaries) from also participating in Medicaid. Planned Parenthood sued the Director of South Carolina’s Department of Health & Human Services, arguing that South Carolina thereby violated Medicaid’s free-choice-of-provider provision. And the Fourth Circuit, in an opinion by Judge J. Harvie Wilkinson III, held both that Planned Parenthood could enforce that provision, and that South Carolina had violated it. Thus, a technical dispute about whether a specific provision of the Medicaid statute can be privately enforced is suffused with the fraught politics of abortion after Dobbs; indeed, the petitioner (the head of South Carolina’s Department of Health and Human Services) is represented not by South Carolina’s Attorney General, but by the Alliance Defending Freedom. Suffice it to say, there’ll be more to discuss about this case (Kerr v. Planned Parenthood) as we get closer to argument.
In addition to a quiet regular Order List last Monday—which had no grants of its own and no separate writing—the Court last week also denied three applications for emergency relief: two seeking to block executions (Indiana’s execution of Joseph Corcoran; Oklahoma’s execution of Kevin Underwood); and another application from Ohio seeking to freeze the effects of a post-conviction habeas case it had lost in the Sixth Circuit.2
Finally, I’d be remiss in not noting Saturday’s release of the Senate Judiciary Committee’s “Majority Staff Report,” An Investigation of the Ethics Challenge at the Supreme Court. The 93-page report is the culmination of a 20-month investigation by the majority (Democratic) staff on the Senate Judiciary Committee, and includes some new information about problematic behavior by some of the justices on top of stuff that was already out in the ether. I doubt that the report (or its exhaustive appendices) is going to move anyone off of their existing positions, but, if nothing else, it’s an important effort to document, in detail, the existing laws and rules governing the justices’ behavior, and the specific recent episodes that have called that behavior into question. (I continue to believe that the forward-looking creation of an Article III Inspector General is the lowest-hanging fruit with regard to how we get out of this mess, but what do I know?)
Turning to this week, for obvious reasons, we expect nothing formal from the Court, which is closed both Tuesday and Wednesday. Next Tuesday evening, we should receive the Chief Justice’s “Year-End Report on the Federal Judiciary.” But the only formal action we might get between now and then would involve emergency applications not yet on the radar.
The One First “Long Read”:
History and Tradition in Military Due Process Cases
As close readers of this newsletter know, in addition to writing (a lot) about the Supreme Court, I sometimes practice before it, as well. And the latest case in which I’m counsel of record is one that folks may find interesting—not just because of the specific constitutional question it raises, but because of the broader structural and methodological questions it provokes.
To make a very long story (told in our cert. petition) shorter, historically, the heart of a military prosecution through a court-martial was the court-martial “panel”—the group of officers (and, later, enlisted personnel if enlisted defendants wanted them) who presided over the proceedings and deliberated a verdict. Indeed, the very idea of a military “judge” is only a recent innovation; until 1968, the panel was the court-martial. More than just a historical quirk, the panel was viewed as the principal procedural protection for the accused—at a time when military defendants had no other rights under the Constitution, federal statutes, or military regulations. Panels weren’t (and aren’t) “juries” for constitutional purposes, but they came to perform much the same function; if anything, they played an even larger role historically. To be sure, there have been examples, both historically and today, of “summary” military adjudications without a panel. But as the Supreme Court made clear in 1975, those disciplinary proceedings don’t produce criminal convictions. The specter of a criminal conviction in the military has always come with a right to a panel.
Starting in 1968, Congress authorized military defendants to choose, in many cases, to be tried by a “judge alone”—the equivalent of a “bench trial” in civilian courts. But servicemembers still had an absolute right to opt for a panel if they wanted one—until 2019. In the Military Justice Act of 2016 (which went into effect on January 1, 2019), Congress introduced what the Court of Appeals for the Armed Forces (CAAF) calls the “unrefusable military judge-alone special court-martial.” The more evocative term is the “short-martial.” So long as the actual punishment is limited to six months’ imprisonment, forfeiture of pay for no more than six months, and no bad-conduct discharge, the statute authorizes a convening authority may refer any charges to a judge-alone special court-martial without the accused’s consent.
The President subsequently added two more constraints through Rule 201(f)(2)(E) of the Rules for Courts-Martial: a short-martial can’t try any offense for which the maximum authorized punishment is more than two years’ confinement; or any offense for which a conviction would require the accused to register as a sex offender under the governing military regulations. But both of those limits underscore what, in our view, are two especially problematic features of the short-martial: it can try felonies and other serious misdemeanors (whether an offense meets those definitions is defined by their maximum authorized punishment, not what’s imposed in a specific case); and convictions will otherwise produce the full battery of collateral consequences. In other words, servicemembers can be convicted in a mandatory bench trial of offenses for which their predecessors, through 2018, had an absolute right to be tried by a panel; and for which defendants in civilian criminal courts have an absolute right to a jury.
So why did Congress take such a dramatic step? The measure was proposed by the Military Justice Review Group in its 2015 report. And here was the crux of its argument for the reform (emphases mine):
The judge-alone special court-martial would offer military commanders a new disposition option for low-level criminal misconduct—one that would be more efficient and less burdensome on the command than a special court-martial, but without the option for the member to refuse as in summary courts-martial and nonjudicial punishment.
In other words, no necessity justified the short-martial; the goal was just to make criminal prosecutions for “low-level” criminal offenses more efficient—presumably because the absence of a panel would speed-up pre-trial proceedings and the trial itself, and would make both somewhat less complicated.
Our cert. petition consolidates appeals from three servicemembers who were convicted by a short-martial. One was convicted of simple assault (an offense also triable in civilian court); one was convicted of a serious misdemeanor; and one was convicted of a felony. All three timely objected that the short-martial violates their rights under the Due Process Clause of the Fifth Amendment.3 In rejecting that argument below, CAAF relied upon the Supreme Court’s two major military due process cases—Middendorf v. Henry and Weiss v. United States.
As CAAF explained, those cases created something of a balancing test by which courts are to assess claims that servicemembers were entitled to greater due process in a court-martial—under which the servicemember must show that “the factors militating in favor of [a different procedure] are so extraordinarily weighty as to overcome the balance struck by Congress.” Among those factors are (1) the history and tradition of military justice; (2) the effects the additional procedure would produce within the military; and (3) the availability of other safeguards to protect the rights of the accused.
In Middendorf and Weiss, the first factor cut heavily (if not decisively) against recognizing a new procedural right—because the military had, for centuries, conducted courts-martial without those protections (a right to counsel in summary proceedings in Middendorf; a right to judges with fixed terms in Weiss). Indeed, Justices Scalia and Thomas argued in their concurrence in Weiss that the “fact of a differing military tradition” should be “utterly conclusive” of what the Due Process Clause requires.
What is striking about the short-martial cases, though, is that the history and tradition analysis should come out entirely the other way. Here, the panel wasn’t just part of the court-martial historically; it was its irreducible procedural minimum—and the most important protection for the accused. That was true in pre-revolutionary British and colonial practice; and it was baked into the Articles of War governing the U.S. Army from its inception.
Thus, if “history and tradition” are meant to play such an outsized role in shaping what the Constitution does (and doesn’t) protect, here’s a rare case in which Congress only recently took something away that had been previously—and continuously—available. At the very least, it seems like the burden should be, as it was in Middendorf and Weiss, on the side that is seeking to break from history and tradition to explain why such a break is necessary. But in its decision below, CAAF never considered how these cases are, in critical respects, the exact opposite of Middendorf and Weiss; it simply applied those cases rather without hesitation.
In any event, as we explain in the petition, even if the burden remains on servicemembers to explain why they should still be entitled to a right they historically possessed, that burden is easily met when it comes to having a panel deliberate a verdict. CAAF conceded below that history and tradition support a right to a panel. And the “effects” on the military of requiring a panel are hardly unpredictable or substantial vis-a-vis the status quo; the U.S. armed forces have borne those costs for centuries. (Indeed, the total number of courts-martial across the military has steadily declined in recent years—so that the costs of panels, in the aggregate, were already going down when Congress created the short-martial.)
As for other procedural safeguards, CAAF pointed to three: the fact that an accused is represented by counsel; the fact that the trial is conducted by an impartial and independent judge; and the availability of appellate review. But the petition argues that the central value of a panel from the accused’s perspective is having a multi-member body deliberate guilt or innocence—rather than a single fact-finder. Indeed, the Supreme Court relied heavily on the virtues of multi-member decisionmaking bodies in Ballew v. Georgia—in which it held that the Sixth Amendment’s Jury Trial Clause imposes a floor of six jurors in criminal cases. We haven’t suggested, in our petition, that a court-martial panel must likewise include six members (current law provides for four members in a special court-martial; and eight in a non-capital general court-martial). But we don’t think it’s controversial that having at least four members deliberate the facts significantly reduces the risk that a conviction will be based on a single fact-finder’s errors.
Against that backdrop, having accused represented by counsel and having an independent and impartial judge are certainly preferable to the alternatives, but they don’t actually safeguard against the problem that arises from a single adjudicator—the risk of error. Nor does any other procedure in the military justice system adequately account for that risk. Indeed, although the service-branch courts of criminal appeals used to have the power, unknown to civilian appellate courts, to conduct de novo review of the factual sufficiency of any conviction over which they had appellate jurisdiction, Congress has recently taken that away. As of January 2021, factual sufficiency review today is not available at all in many cases—and is highly circumscribed in the rest.
CAAF also pointed to the fact that a short-martial may try only relatively minor offenses. But the limits on the offenses a short-martial can try aren’t “safeguards,” for they do nothing to mitigate the risk that arises from having a single fact-finder resolve an accused’s guilt or innocence. All they do is recognize (and attempt to reduce) the consequences of the greater number of erroneous convictions that are likely to result from having cases involuntarily tried to a single fact-finder. As the petition concludes, those are just not the same thing.
All of this goes to why we think CAAF’s due process analysis leaves more than a little to be desired—not just with respect to a right to a panel, but in general. Indeed, the way that CAAF applied Middendorf and Weiss in Wheeler makes it difficult to imagine any case in which the court of appeals would find a due process violation in a court-martial.
And taking a step back, the Supreme Court historically has upheld the military’s power to prosecute its own personnel before non-Article III courts because of the court-martial’s historical tradition—and the fact that the Founders would have been quite familiar with the court-martial as a forum. But that exception to Article III has been tied to the idea that, as Justice Kagan put it in 2018, “Congress has maintained courts-martial in all their essentials to resolve criminal charges against service members.” The more that Congress is departing from the most essential attributes of what made courts-martial courts-martial, the stronger the argument for the Supreme Court to revisit the matter—and to articulate, more clearly, just how much the historical tradition of the court-martial does (and should) constrain Congress from contemporary departures.
As noted above, we filed the petition on Friday. It should be formally docketed later this week or early next, which should lead to a government response, even with an extension or two, by late March or early April. One way or the other, then, the justices should be in a position to decide whether to take this case up before they rise for their summer recess. I’m obviously (very) biased, but as the petition notes, it’s been 37 years since the Court last considered the scope of the military exception to Article III. If Congress can turn courts-martial into something that looks nothing like Founding-era military courts, it would, at the very least, behoove the justices to say so.
SCOTUS Trivia:
The Court’s Expanding Court-Martial Jurisdiction
Last December, I wrote about how, in the National Defense Authorization Act for Fiscal Year 2024, Congress quietly expanded the Supreme Court’s appellate jurisdiction over CAAF—to include cases in which CAAF has denied a servicemember’s petition for discretionary review. (The Court’s jurisdiction was previously limited to cases in which CAAF didn’t have discretion or cases in which it had granted discretionary review—like our short-martial cases.) Given that CAAF denies somewhere between 80% and 90% of the discretionary petitions it receives,4 this distinction is a pretty big deal—and could lead to a significant uptick in cert. petitions from servicemembers challenging their court-martial convictions on direct appeal.
The trivia here involves the FY2024 NDAA’s actual effective date. As I noted last year, the statute had an odd trigger for when its jurisdictional amendment would enter into force. To quote the statute, the new, broader jurisdictional rule “shall take effect on the date that is one year after the date of the enactment of this Act and shall apply with respect to any action of the United States Court of Appeals for the Armed Forces in granting or refusing to grant a petition for review submitted to such Court for the first time on or after such effective date.” The FY2024 NDAA was signed into law on December 22, 2023. So the effective date of the jurisdictional provision was yesterday—December 22, 2024.
Thus, the Supreme Court’s new, broader jurisdiction over CAAF is available with respect to any case in which a petition for review is submitted to CAAF for the first time from today (the court wasn’t open yesterday) onwards. It’ll be interesting to see, over time, how many more cert. petitions from CAAF the Court receives as a result—and whether the Court will feel any concomitant pressure to take more servicemember appeals. Since 1997, it has conducted plenary review in only one.
I hope that you’ve enjoyed this installment of “One First.” If you have feedback about today’s issue, or thoughts about future topics, please feel free to e-mail me. And if you liked it, please help spread the word!
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Until then, my very best wishes to you and yours for a happy and healthy holidays.
Everything in today’s post reflects my views, and not (necessarily) those of my co-counsel or clients.
This is the second such loss by Ohio in the last month; the full Court previously denied a similar application in a different post-conviction case on November 22.
In the lower courts, the servicemembers also argued that the short-martial violates the Sixth Amendment’s Jury Trial Clause. We haven’t pressed that argument before the Supreme Court.
During its October 2023 term, for instance, CAAF received 220 petitions for discretionary review and granted 33 (15%) of them.
Fascinating to learn how different military law is from civilian law. I hope the S Ct takes this case so we can follow it with you. In addition to history and tradition arguments, you emphasized that judge-only trials (short-martials) are likely to increase errors of fact (as compared to traditional panels of 4 or 8). Makes sense. To support this notion, do you have empirical evidence of how frequently (in the past) errors of fact have led to erroneous convictions?