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Marbury v. Madison–in 2018?

Time Machine

Unlike some sites, this blog does not focus heavily on decisions from the U.S. Supreme Court. But last Friday’s decision in Ortiz v. United States on the breadth of the jurisdiction of the Supreme Court is a must-read for anyone interested in appellate practice and procedure.

As background, the petitioner in Ortiz was a member of the military who was convicted of a crime as part of a military court martial. That conviction was ultimately affirmed by the Court of Appeals for the Armed Forces. Could the petitioner then appeal that decision to the U.S. Supreme Court? On the one hand, the Supreme Court is only permitted to review judicial decisions—but the Court of Appeals for the Armed Forces is a military institution that is part of the executive branch. On the other hand, Congress has explicitly stated that the Supreme Court has the authority to review such decisions. Is that enough?

Justice Kagan, writing for the majority, said yes. Courts martial “are now subject to several tiers of appellate review,” and the Supreme Court is the body that sits at the “apex” of the appellate system. According to the majority, the “essential” character of the military justice system is judicial in nature. The fact that the Court of Appeals for the Armed Forces is not an Article III court is not dispositive, as the Supreme Court already reviews decisions from non-Article III bodies such as state supreme courts and territorial courts created by Congress.

Justice Thomas wrote a separate concurrence based on “the Founders’ understanding of judicial power.” He explained that the text of Article III does not limit appellate jurisdiction to decisions by Article III courts, and the military appellate bodies are exercising a “judicial” power as that concept was understood in the eighteenth century.

Justice Alito (joined by Justice Gorsuch) dissented and argued that “every single drop” of the judicial power is constitutionally vested in Article III courts. Even if the military system “looks like” a judicial system, Justice Alito argued that it is still part of the executive branch. Thus, the earlier decisions in Ortiz’s case were not judicial decisions at all—and therefore the Supreme Court could not exercise its “appellate” jurisdiction over those decisions.

All three opinions rely heavily on Marbury v. Madison. In fact, the majority and dissent give rather lengthy descriptions of the details of that case. So in the event you wanted to relive your first year of law school, I commend the decisions as an interesting recap.

Readers will also be glad to know that Justice Thomas was sure to identify the “young, scrappy, and hungry” writer of the Federalist Papers.

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