Supreme Court Update: Ortiz v. United States (16-1423)

June 27, 2018 Supreme Court Update

Greetings, Court Fans!

OT17 came to a close this morning, and—as is generally the case—the Court saved its most controversial decisions for last. Yesterday morning (as you just might have heard by now), the Court upheld the Trump administration's so-called Travel Ban, holding in Trump v. Hawaii (No. 17-965) that the proclamation is a lawful exercise of the broad discretion granted the President under the Immigration and Nationality Act to suspend the entry of aliens into the United States and that it does not violate the Establishment Clause, notwithstanding candidate Trump's remarks about "Muslim bans" and the like. The Chief Justice wrote for the majority (the second time he's come to the rescue of a President's signature policy achievement, though this time without crossing the proverbial "aisle"). Increasingly strident dissents were filed by Justice Breyer (joined by Kagan) and Justice Sotomayor (joined by Ginsburg). Also yesterday, the same 5-4 majority held in NIFLA v. Becerra (No. 16-1140), that a California statute requiring "crisis pregnancy centers," to notify women that the State provides free or low-cost abortions and (if applicable) that the centers are not licensed to provide medical services violates the First Amendment's prohibition against compelled speech. That opinion came by way of Justice Thomas and provoked another dissent from Breyer, joined by the Court's three female justices. And this morning, the 5-4 majority was at it again, holding in Janus v. AFSCME (No. 16-1466) that state laws requiring public employees to pay "agency fees" to public-sector unions violate the free speech rights of nonconsenting members by compelling them to subsidize speech on matters of substantial public concern. The Court thereby overruled Abood v. Detroit Board of Ed. (1977), which upheld a similar law. As loyal Fans know, Janus represents the third time in recent terms that the Court has considered overruling Abood, which has become something of a pet cause for Justice Alito. Unsurprisingly, Alito had the opinion the Court, which provoked a lengthy dissent from Justice Kagan and a solo dissent from Justice Sotomayor.

While those decisions surely have our left-of-center readers cursing Mitch McConnell and his successful Garland blockade (while perhaps also breathing a sigh of relief that there were no retirement announcements this morning), the final decision of the term was a reminder that, sometimes, The Nine divide along apolitical lines. In Florida v. Georgia (No. 142, Orig.), a case involving the proper apportionment of water in an interstate river basin (not exactly the Third Rail of American political discourse), an unusual 5-4 majority held that the Special Master overseeing the dispute applied too strict a standard in concluding that Florida had failed to meet its threshold burden of showing that its injuries could be redressed by an equitable order limiting Georgia's use of water. Accordingly, in its last punt of the season, the Court kicked the case back down to the Special Master to determine whether indeed Florida is entitled to that remedy. Justice Breyer had the opinion for the majority, joined by the Chief, Kennedy, Ginsburg, and Sotomayor, while Thomas dissented on behalf of Alito, Kagan, and Gorsuch. Go figure!

We'll obviously have a lot to talk about over the next few days as we bring you summaries of these last decisions of the term, but we're still playing catch-up, so bear with us. For now, let's talk about dual service and appellate jurisdiction over military appeals! In Ortiz v. United States (16-1423), the Court addressed principally whether a military officer can serve as a judge on both the Court of Appeals for the Air Force (CAAF) and the Court of Military Commission Review (CMCR). But, courtesy of an argument raised by a law professor acting as amicus curiae, the Court probably devoted more attention to whether it had Article III jurisdiction to review CAAF decisions in the first place. The decision serves up an intellectual feast for jurisdiction nerds, but we'll be jockishly sticking with the basics, given the press of other matters in the pipeline. (Suffice it to say, Marbury v. Madison (1803) is cited 33 times . . . .)

Keanu Ortiz, an Airman First Class in the Air Force, was charged with knowingly possessing and distributing child pornography, a violation of the military code. A court-martial found Ortiz guilty of the violation and sentenced him to two years in prison and a dishonorable discharge. The Air Force CCA panel, a three-judge appellate panel that included Colonel Martin Mitchell, affirmed the court martial's decision. Ortiz challenged the panel's decision based on Colonel Mitchell's simultaneous service on the CMCR. The CMCR is an appellate tribunal created to review the decision of military commissions, particularly those operating in Guantanamo Bay. The Secretary of Defense put Colonel Mitchell on the CMCR shortly after he became a member of the CCA, pursuant to a statute authorizing the Secretary to "assign [officers] who are appellate military judges" to serve on the CMCR as well. Ortiz argued that Colonel Mitchell's service on the CCA panel violated the so-called dual-service statute, which prohibits military officers from "hold[ing], or exercis[ing] the functions of" certain "civil office[s]" in the federal government, "[e]xcept as otherwise authorized by law." He also argued that the Constitution's Appointments Clause. The Court of Appeals for the Armed Forces (CAAF) rejected both of Ortiz's arguments and the Supreme Court granted his petition for cert to decide both issues. In an unusual move, the Court granted oral argument time to an "independent" amicus curiae, UVA Law Professor Aditya Bamzai, who argued that the Supreme Court lacks Article III jurisdiction over cases decided by the CAAF..

Justice Kagan authored the opinion for the seven justice majority (all but Alito and Gorsuch). Before reaching the merits, she addressed Professor Bamzai's jurisdictional argument. addressed While she acknowledged that the Court lacks original jurisdiction over CAAF decisions, Justice Kagan concluded that it does have appellate jurisdiction. As she explained, Article III of the Constitution "provides no apparent barrier" to the Court's appellate jurisdiction and the military justice system's essential character is "in a word, judicial." As a result, the majority found no basis to distinguish its appellate jurisdiction over military courts from its jurisdiction over ordinary federal courts. Turning to the merits, Justice Kagan rejected Ortiz's argument that Colonel Mitchell's appointment to the CMCR violated the dual-service statute, pointing out that the statute prohibits military officers from holding civil offices "except as otherwise authorized by law." In this instances, there was another statute specifically authorizing the Secretary of Defense to assign officers serving on the CCA panel to be judges on the CMCR. Since Colonel Mitchell was assigned to the CMCR pursuant to this statute, his appointment could not run afoul of the general rule prohibiting active-duty officers from holding "civil offices" in the Federal Government. Kagan also rejected the Appointments Clause argument, which (as you'll recall from Lucia v. SEC (2018)) turns on the distinction between principal officers and inferior officers. The Court acknowledged that by virtue of his appointment to the CCA, Colonel Mitchell was an inferior officer. Ortiz claimed that his appointment to the CMCR also made him a principal officer and that, under the Appointments Clause, a single judge cannot serve as an inferior officer on one court and a principal officer on another. But Justice Kagan noted that the Court had never read the Appointments Clause to impose rules about dual service. She also rejected the idea that Colonel Mitchell's service on the CMCR would result in "undue influence" on his colleagues on the CCA panel, and therefore concluded that there was no violation of the Appointments Clause.

Justice Thomas joined the majority opinion in full, but wrote separately to explain his view of why the Court had appellate jurisdiction to review the CAAF's decisions, based on an original understanding of the judicial power. As he explained, the Founders' understanding of judicial power was rooted in the distinction between public and private rights. According to the Founders, private rights, like the rights to life, liberty, and property, are subject to the power of the judiciary, including the Supreme Court's appellate jurisdiction. Because CAAF adjudicates private rights, Justice Thomas reasoned that its decisions are reviewable by the Supreme Court.

Justice Alito disagreed, joined in dissent by Justice Gorsuch. Alito began with the proposition that Article III vests judicial power only in tribunals whose judges have life tenure and salary protection. Since CAAF judges serve 15-year terms and can be removed by the President for cause, the CAAF is not vested with judicial power, even if its "judges" wear robes and act like they sit on a "court." As a result, they reasoned, any action by the CAAF that amounted to an exercise of judicial power would be unconstitutional. Since the CAAF's adjudication of Ortiz's case was an exercise of judicial power, they argued, it was unconstitutional, but also outside the scope of the Court's appellate jurisdiction. The Supreme Court cannot take appeals directly from the executive branch.

Once again, we encourage those of you who have a hidden interest in the historical underpinnings of Article III appellate jurisdiction to go straight to the source. For the rest of you, we'll be back ASAP with more summaries of the final decisions of the just-ended term.