Equal Supreme Court Access For Military Personnel: An Overdue Reform

18 Pages Posted: 18 Feb 2021 Last revised: 1 Jun 2021

See all articles by Eugene Fidell

Eugene Fidell

NYU Law School; Yale Law School

Brenner Fissell

Villanova University; Hofstra University - Maurice A. Deane School of Law

Philip D. Cave

National Institute of Military Justice

Date Written: February 17, 2021


While one might think that every criminal defendant in the United States has the opportunity to eventually appeal their conviction to the Supreme Court, Congress has largely blocked the path of perhaps the most deserving category of defendants: military personnel convicted at courts-martial. This is because under the 1983 law granting certiorari jurisdiction over military cases, only court-martial convictions that are granted review by the nation’s highest military court may be appealed; those in which that court denies review are excluded from access to the Supreme Court.

In this Article, we argue that this jurisdictional limitation is both bad policy and unconstitutional for several reasons, and that Congress should remove it. Whether or not a court would find the limitation unconstitutional is not the point. Congress has an independent obligation to avoid violating constitutional norms. By delegating to an executive branch court—the United States Court of Appeals for the Armed Forces (CAAF)—the power to determine the Supreme Court’s jurisdiction over court-martial appeals, Congress violated the separation of powers. In carving out a comparatively small class of cases as non-reviewable for the ostensible purpose of reducing the Supreme Court’s workload, Congress acted irrationally and violated equal protection. By making this category nearly coterminous with the universe of military cases (since almost all are denied review by CAAF), and conferring on that court a vague and non-reviewable standard for granting review, Congress violated the Exceptions Clause. Finally, by providing for Supreme Court jurisdiction over cases in which a Judge Advocate General certifies a case for review, but not over those in which an accused seeks review, the system unfairly provides asymmetric access to justice in favor of the government.

Keywords: courts-martial, federal courts, supreme court

Suggested Citation

Fidell, Eugene and Fidell, Eugene and Fissell, Brenner and Cave, Philip D., Equal Supreme Court Access For Military Personnel: An Overdue Reform (February 17, 2021). 131 Yale Law Journal Forum __, Forthcoming, Hofstra Univ. Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=3787736

Eugene Fidell

NYU Law School ( email )

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

Brenner Fissell (Contact Author)

Villanova University ( email )

Villanova, PA 19085
United States

HOME PAGE: http://www.brennerfissell.com

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

Philip D. Cave

National Institute of Military Justice

United States

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