Supreme Court Appellate Jurisdiction Over Military Court Cases

Supreme Court Appellate Jurisdiction Over
Military Court Cases
October 6, 2008
Anna C. Henning
Law Clerk
American Law Division

Supreme Court Appellate Jurisdiction Over
Military Court Cases
Military courts, authorized by Article I of the U.S. Constitution, have
jurisdiction over cases involving military servicemembers, including, in some cases,
retired servicemembers. They have the power to convict for crimes defined in the
Uniform Code of Military Justice (UCMJ), including both uniquely military offenses
and crimes with equivalent definitions in civilian laws. For example, in a recent case,
United States v. Stevenson, military courts prosecuted a retired serviceman for rape,
a crime often tried in civilian courts.
The military court system includes military courts-martial; a Criminal Court of
Appeals for each branch of the armed services; and the U.S. Court of Appeals for the
Armed Forces (CAAF), which has discretionary appellate jurisdiction over all
military cases. With the exception of potential final review by the U.S. Supreme
Court, these Article I courts handle review of military cases in an appellate system
that rarely interacts with Article III courts.
Criminal defendants in the Article III judicial system have an automatic right to
appeal to federal courts of appeal and then a right to petition the Supreme Court for
final review. In contrast, defendants in military cases typically may not appeal their
cases to the U.S. Supreme Court unless the highest military court, the CAAF, had
also granted discretionary review in the case. The Equal Justice for Our Military Act
of 2007, H.R. 3174, which the House passed on September 27, 2008, and a
companion bill in the Senate, S. 2052, would authorize appeals to the U.S. Supreme
Court for all military cases, including cases that the CAAF declined to review.

Military Courts’ Jurisdiction.....................................1
Appellate Structure for Military Cases.............................2
Interactions Between Article I and Article III Courts..................5
United States v. Stevenson.......................................7th
Bills Introduced in the 110 Congress..............................8
Conclusion ...................................................8

Supreme Court Appellate Jurisdiction Over
Military Court Cases
The U.S. military justice system exercises jurisdiction over criminal cases
pursuant to Article I of the U.S. Constitution and the Uniform Code of Military
Justice (UCMJ). Military courts’ jurisdiction is limited to trying people connected
to the armed forces for crimes defined by the UCMJ. Within these constraints,
military courts’ jurisdiction is relatively broad. For example, it extends to retired
servicemembers such as the defendant in United States v. Stevenson,1 a recent case
in which military courts convicted a man on the Navy’s temporary disability retired
list. In Stevenson, the Navy prosecuted the defendant for rape, a crime routinely tried
in non-military courts with civilian defendants.2
In general, the military justice system, including its system of appellate review,
is separate and distinct from the civilian judicial system. Some constitutional
safeguards and Supreme Court interpretations are inapplicable in military courts.
Also, after following appellate review through the military court system, military
defendants may appeal to the U.S. Supreme Court only in limited circumstances.
Two bills introduced in the 110th Congress — H.R. 3174, which the House passed
on September 27, 2008, and a companion bill in the Senate, S. 2052 — would
broaden the Supreme Court’s statutory jurisdiction by authorizing Supreme Court
review of most military cases. This report surveys military courts’ jurisdiction, the
structure of appellate review for military cases, interactions between military and
civilian courts, the Stevenson case, and the bills introduced in the 110th Congress.
Military Courts’ Jurisdiction
Most criminal cases in the United States are tried either in state courts or in
civilian federal courts. The latter derive authority from Article III of the U.S.
Constitution.3 However, the armed forces may prosecute defendants with military

1 66 M.J. 15 (C.A.A.F. 2008).
2 Id. at 16. In Stevenson, the Naval Criminal Investigative Service investigated the defendant
after determining that he “was a possible suspect in a ... rape of a military dependent.” Id.
Thus, military prosecutors tried the case in military courts. However, a civilian court would
have had jurisdiction over the same conduct in a case involving a civilian defendant.
3 Article III vests judicial power in the Supreme Court and “such inferior courts as the
Congress may from time to time ordain and establish.” U.S. Const. art. III. Article III courts
include the U.S. Supreme Court, federal courts of appeals, federal district courts, and the
U.S. Court of International Trade.

connections in military courts, which derive authority from Article I, sec. 8 of the
U.S. Constitution.4
The Uniform Code of Military Justice (UCMJ), passed by Congress and
implemented by the President through the Manual for Courts-Martial (MCM),
governs military courts’ jurisdiction and procedures.5 Military courts exercise
jurisdiction over officers and enlisted servicemembers on active duty.6 The scope of
their jurisdiction may extend to individuals other than active duty and enlisted
servicemembers. Specifically, such jurisdiction extends to cases involving retired
servicemembers who receive military pay or hospital care from an armed force;
specified members of reserve units; enemy combatants; and other individuals with
connections to military operations or benefits.7 As noted below in the discussion of
United States v. Stevenson, questions remain regarding the scope of military courts’
power over retired servicemembers. However, it is clear that military courts’
jurisdiction extends to military veterans only when a veteran maintains at least some
current relationship with the military.8
If a defendant’s connection with the armed forces is sufficient to establish
jurisdiction, a military court may try that defendant for a broad range of activities,
including conduct not related to official military duties, as long as the alleged
conduct constitutes a crime under the UCMJ. The UCMJ includes some crimes that
are unique to military service. For example, under the UCMJ, a defendant might be
prosecuted for effecting unlawful enlistment, appointment, or separation; desertion;
or absence without leave.9 However, the armed forces may also prosecute defendants
under the UCMJ for conduct over which civilian courts could also exert jurisdiction.
For example, the UCMJ criminalizes murder, rape, robbery, and other common law
Appellate Structure for Military Cases
Article I military courts handle military cases throughout the chain of appellate
review. Appeal to the U.S. Supreme Court is permitted at the end of the process only
in specified circumstances.

4 Relevant provisions of Art. I, sec. 8 empower Congress to “raise and support armies”;
“provide and maintain a navy”; and “make rules for the government and regulation of the
land and naval forces.” The section also grants Congress powers of “organizing, arming, and
disciplining the Militia, and for governing such Part of them as may be employed in the
Service of the United States.” U.S. Const. art. I, § 8.
5 10 U.S.C. § 801 et. seq.
6 10 U.S.C. § 802.
7 10 U.S.C. § 802(a).
8 Toth v. Quarles, 350 U.S. 11, 14-15 (1955) (“It has never been intimated by this Court ...
that Article I military jurisdiction could be extended to civilian ex-soldiers who had severed
all relationship with the military and its institutions.”).
9 10 U.S.C. §§ 884, 885, 886.
10 Id. at §§ 918, 920, 922.

The UCMJ creates various military courts and provides appellate procedures for
them.11 After an initial investigation and a court-martial, which is a trial-level
proceeding, military cases undergo various stages of review within the military
justice system. First, each court-martial proceeding has a “convening authority,” who
is a commissioned officer (other than the defendant’s accuser) who convenes the
investigation and court-martial proceeding and then approves or modifies the court-
martial’s findings and sentences.12 Convening authorities do not provide legal review;
instead, they provide the equivalent of sentencing determinations by giving “full and
fair consideration to matters submitted by the accused and determining appropriate
action on the sentence.”13 Under the UCMJ, convening authorities have “substantial
discretion” to modify sentences and findings.14
After a convening authority approves or modifies a court-martial decision, a
Court of Criminal Appeals offers the first opportunity for legal review in military
cases. Each branch of the armed services has a Court of Criminal Appeals, comprised
of panels of military judges15 established by the Judge Advocate General for each
branch.16 The Courts of Criminal Appeals review cases in panels or, occasionally,
en banc.17 Review is not discretionary; each Judge Advocate General “shall refer” to
the relevant Court of Criminal Appeals every case involving a conviction that
imposes the death penalty or confinement for one year or more; a bad-conduct or
dishonorable discharge; or, in certain cases, dismissal from the respective service.18
Unlike convening authorities, Courts of Criminal Appeals provide legal review of
military cases. They “may affirm only such findings of guilty, and the sentence ... as
[they] fin[d] correct in law and fact and determin[e], on the basis of the entire record,
should be approved.”19
After a Court of Criminal Appeals has reviewed a case, the United States Court
of Appeals for the Armed Forces (CAAF) provides the final opportunity for appellate
review within the military court system. The CAAF is an Article I court, housed

11 10 U.S.C. § 801 et. seq. For an overview of courts-martial procedure, see CRS Report
RS21850, Military Courts-Martial: An Overview, by Jennifer K. Elsea.
12 10 U.S.C. § 860; United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003).
13 Davis, 58 M.J. at 102.
14 10 U.S.C. § 860(c).
15 The UCMJ defines “military judge” as a “commissioned officer of the armed forces”
whom the Judge Advocate General of the relevant branch has certified as qualified to serve
in the branch in which the judge is a member. 10 U.S.C. § 826(b).
16 10 U.S.C. § 866(a). The four Courts of Criminal Appeals are the Army Court of Criminal
Appeals, the Air Force Court of Criminal Appeals, the Navy-Marine Corps’ Court of
Criminal Appeals, and the Coast Guard Court of Criminal Appeals.
17 Id.
18 10 U.S.C. § 866(b). Dismissals of commissioned officers, cadets, and midshipmen are
subject to automatic review by the Courts of Criminal Appeals. Id.
19 10 U.S.C. § 866(c).

within the Department of Defense.20 However, unlike other military courts, the
CAAF is comprised of civilian judges, whom the President appoints.21
In general, the CAAF has discretion to grant or deny petitions for appeals,
analogous to the U.S. Supreme Court’s discretion to grant or deny writs of
certiorari.22 However, the CAAF must accept appeals in two circumstances: 1) all
cases in which the relevant Court of Criminal Appeals has affirmed a death sentence;
and 2) all cases in which a Judge Advocate General has sent a case to the CAAF for
review after a final Court of Criminal Appeals decision.23
The CAAF’s appellate review is limited. The CAAF must act “only with respect
to the findings and sentence as approved by the [court-martial’s] convening authority
and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.”24
In other words, appeals to the CAAF must involve issues originally heard by a court-
martial and affirmed or denied by a convening authority and the relevant Court of
Criminal Appeals. The CAAF cannot hear appeals based on the All Writs Act or
other jurisdictional authority unless they aid direct review of court-martial decisions.
For example, in Clinton v. Goldsmith,25 the Air Force had dropped from its rolls
a servicemember who had served an earlier sentence for engaging in unprotected sex
without telling his partners of his HIV-positive status. The servicemember had
petitioned the Air Force Court of Criminal Appeals for injunctive relief under the All
Writs Act, but that court denied relief, holding that it lacked jurisdiction. The CAAF
then granted the injunctive relief.26 The U.S. Supreme Court held that the CAAF had
exceeded its jurisdiction in granting injunctive relief because the relief did not
involve review of a court-martial decision.27 In so holding, the Supreme Court
rejected the CAAF’s argument that jurisdiction was proper because the Air Force’s
dropping of the servicemember related to conduct at issue in an earlier court-martial
proceeding; instead, the Court emphasized that “there is no source of continuing
jurisdiction for the the CAAF over all actions administering sentences that the CAAF
at one time had the power to review.”28
With respect to appeals from the CAAF, the U.S. Supreme Court has
jurisdiction to grant certiorari in four specific circumstances: 1) cases in which a
death sentence has been affirmed by the relevant branch’s Court of Criminal Appeals;

20 See 10 U.S.C. § 941.
21 10 U.S.C. § 942(b) (“Each judge of [The CAAF] shall be appointed from civilian life by
the President, by and with the advice and consent of the Senate....”).
22 10 U.S.C. § 867(a)(3).
23 10 U.S.C. § 867(a)(1),(2).
24 10 U.S.C. § 867(c).
25 526 U.S. 529 (1999).
26 Id. at 532-33.
27 Id. at 534-36.
28 Id. at 536.

2) cases that a Judge Advocate General has certified to the CAAF; 3) cases in which
the CAAF granted a petition for review, and 4) cases that do not fall in the other
categories but in which the CAAF has granted relief.29 The first two categories
represent the two circumstances in which the CAAF must grant appeals. The second
category represents cases in which the CAAF has exercised its discretion to grant an
appeal. And the final category is a catch-all provision for other cases in which the
CAAF might grant relief.
Because the Supreme Court’s jurisdiction is limited to these four circumstances,
its power to review military cases generally extends only to cases that the CAAF has
also reviewed. For this reason, the CAAF’s discretion over the acceptance or denial
of appeals often functions as a gatekeeper for military appellants’ access to Supreme
Court review. If the CAAF denies an appeal, the U.S. Supreme Court will typically
lack the authority to review the decision. In contrast, criminal appellants in Article
III courts have an automatic right of appeal to federal courts of appeals and then a
right to petition the Supreme Court for review.30
Interactions Between Article I and Article III Courts
The U.S. armed forces have a long history of self-regulation. Except for limited
interaction with the U.S. Supreme Court, Article I military courts operate separately
from the Article III judicial system. As discussed above, military courts have distinct
trial procedures and structures for appellate review. In addition, because military
courts’ jurisdictional authority arises under Article I rather than Article III,
defendants in military cases do not have the benefit of certain Article III safeguards,
such as lifetime appointments for judges.31 In addition, although military defendants
are entitled to due process rights under the Fifth Amendment to the Constitution, the
Supreme Court has upheld a narrowed interpretation of such rights in the context of
military courts.32
Furthermore, legal interpretations by Article III courts do not necessarily create
binding precedent for Article I courts, and vice versa. The only Article III court
holdings that bind military courts are those of the U.S. Supreme Court. However,
military courts sometimes reject even Supreme Court precedents as inapplicable in
the military context. For example, in United States v. Marcum,33 the CAAF declined
to follow an interpretation of the constitutional right to privacy that the Supreme
Court had handed down a short while earlier. In Marcum, a court-martial had
convicted a servicemember of various crimes, including non-forcible sodomy.34 On
appeal, the servicemember argued that with respect to the non-forcible sodomy

29 28 U.S.C. § 1259 (2008).
30 28 U.S.C. § 1254(1).
31 Weiss v. United States, 510 U.S. 163, 177-81 (1994) (holding that lack of fixed terms for
military court judges does not violate Fifth Amendment due process guarantees).
32 Id.
33 60 M.J. 198, 205 (C.A.A.F. 2004).
34 Id. at 199.

charge, he was protected by a constitutional right to privacy in intimate relations
under the Supreme Court case Lawrence v. Texas.35 However, the CAAF declined to
follow Lawrence.36 The CAAF’s rationale for diverging from Supreme Court
precedent in Marcum was that constitutional protections “may apply differently to
members of the armed forces than they do to civilians.”37 Thus, although
“constitutional rights identified by the Supreme Court generally apply to members
of the military,” such rights do not apply when “by text or scope they are plainly
Similarly, Article III courts are not bound by military courts’ decisions. The
Supreme Court may consider CAAF decisions or UCMJ provisions as potentially
persuasive. For example, the Supreme Court ordered briefs to examine the impact of
a military code provision after it handed down its decision in Kennedy v. Louisiana,39
a case involving the question of a death penalty sentence for a child rapist.40 In
Kennedy, the Supreme Court held that the 8th Amendment prohibits punishment by
death penalty for a defendant who rapes a child but did not cause or intend to cause
a child’s death.41 In so holding, the Court emphasized the “national consensus”
against the death penalty in such cases.42 In its petition for rehearing, Louisiana
argued that Congress’s recent amendment of the UCMJ to include a death penalty
punishment in military cases for the rape of a child undermined the Court’s “national
consensus” argument.43 However, the Supreme Court decided not to reconsider its
Kennedy decision, instead reaffirming its prior ruling with only minor modifications.
In its opinion accompanying its denial of rehearing, the Supreme Court disagreed
with Louisiana’s interpretation of the death penalty language in the UCMJ
amendment, but it also emphasized that “authorization of the death penalty in the
military sphere does not indicate that the penalty is constitutional in the civilian

35 539 U.S. 558 (2003).
36 Marcum, 60 M.J. at 205.
37 Id.
38 Id. at 206.
39 128 S.Ct. 2641 (2008).
40 Kennedy v. Louisiana, Docket No. 07-343, Order September 8, 2008.
41 Kennedy, 128 S.Ct. at 2645.
42 Id. at 2657-58. For more information on the Kennedy v. Louisiana case, see CRS Report
RS22844, Capital Punishment: Constitutionality for Non-Homicide Crimes Such as Child
Rape, by Alison M. Smith.
43 Kennedy v. Louisiana, Docket No. 07-343, Petition for Rehearing.
44 Kennedy v. Louisiana, Denial of Petition for Rehearing, 554 U.S. __ (2008) (October 1,

2008), slip opinion at 3.

United States v. Stevenson
A recent case, United States v. Stevenson,45 highlights two issues relevant to
jurisdiction in military cases. First, it raises questions regarding the scope of military
courts’ jurisdiction over retired servicemembers. Second, it raises a question
regarding Supreme Court jurisdiction to review legal questions when the CAAF
denied review. The first question was the basis for the Stevenson appellant’s petition
to the Supreme Court for certiorari.46 The United States raised the second question47
in its brief opposing appellant’s certiorari petition.
Although the U.S. Supreme Court clearly has jurisdiction over cases in which
the CAAF granted review,48 it is unclear whether the Supreme Court’s jurisdiction
extends to specific issues that the CAAF declined to address. In Stevenson, Naval
Criminal Investigative Service officials had investigated the appellant, a man on the
Navy’s temporary disability retired list, while he received treatment at a Veterans
Affairs hospital. A military court-martial then tried and convicted the appellant for
rape. On appeal, the CAAF remanded the case for fact finding regarding blood draws
taken while appellee was a patient at the VA hospital.49
After the United States Navy-Marine Corps’ Court of Criminal Appeals
affirmed the court-martial’s decision on remand, the CAAF granted a second review
of the case.50 However, exercising its discretion, the CAAF limited the issues on
appeal to potential Fourth Amendment violations, declining to review the question
of the military court’s jurisdiction over a man on the temporary disability retired51
In his petition to the Supreme Court for certiorari, the appellant in Stevenson
requested review of only the issue that the CAAF had declined to address — namely,
the issue of military courts’ jurisdiction over a case involving a person on the
temporary disability retired list.52 In response, the United States argued in its
opposing brief that the Supreme Court’s appellate review power does not extend to
issues that the CAAF declined to review.53 Thus, because the CAAF had declined to

45 66 M.J. 15 (C.A.A.F. 2008).
46 Brief of Petitioner-Appellant, United States v. Stevenson, No. 07-1397 (C.A.A.F. February

14, 2008).

47 Brief for the United States in Opposition, United States v. Stevenson, No. 07-1397
(C.A.A.F. February 14, 2008).
48 28 U.S.C. § 1259(3).
49 Stevenson, 66 M.J. at 16-17.
50 Id.
51 Id. at 16.
52 Brief of Petitioner-Appellant at i.
53 Brief for the United States in Opposition at 7-10.

review that portion of the Criminal Court of Appeals’ decision, the United States
argued that the Supreme Court lacked jurisdiction over the appeal.54
Bills Introduced in the 110th Congress
Companion bills (H.R. 3174 and S. 2052) introduced in the 110th Congress
would expand the U.S. Supreme Court’s appellate jurisdiction over military cases.55
The House passed its version, entitled the Equal Justice for Our Military Act of 2007,
by voice vote on September 27, 2008. The bills would amend the UCMJ to authorize
appeals to the Supreme Court in military cases, regardless of the CAAF’s acceptance
or denial of an appeal.
Bill sponsors have emphasized the need for the law to address the
“long-standing disparity” between the broad ability to appeal the Supreme Court in
civilian cases, on one hand, and the limited ability to appeal to the Supreme Court in
military cases, on the other hand.56 For example, when introducing H.R. 3174,
Representative Davis stated that the legislation would “give our servicemembers
equal access to the United States Supreme Court.”57 She also emphasized that under
the current system, service men and women “sacrifice one of the fundamental legal
rights that all civilian Americans enjoy” — namely, the right to appeal their cases to
the U.S. Supreme Court.58
Courts have recognized compelling justifications for a military justice system
that is distinct from Article III courts. For example, in Marcum, the CAAF
emphasized the importance of ensuring discipline and obedience in the armed
forces.59 The Marcum court also stressed the military’s interest in disciplining
servicemembers differently according to their rank.60 However, it is unclear whether
such arguments justify a disparity in access to Supreme Court review, especially in
the context of servicemembers no longer on active duty or crimes that exist under
both military and civilian laws.
Military cases follow a unique process of appellate review, moving from courts-
martial through the following steps: 1) automatic appeals to Courts of Criminal
Appeals for each armed forces branch; 2) potential discretionary review by the
highest military court, the CAAF; and 3) review by the U.S. Supreme Court in

54 Id.
55 Equal Justice for United States Military Personnel Act of 2007, S. 2052, 110th Cong.
(2008); Equal Justice for Our Military Act of 2007, H.R. 3174, 110th Cong. (2008).
56 See Cong. Rec. S11588 (daily ed. September 17, 2007) (statement of Senator Feinstein
on behalf of herself, Senator Specter, and Senator Feingold).
57 Cong. Rec. E1618 (daily ed. July 25, 2007) (statement of Hon. Susan A. Davis).
58 Id.
59 Marcum, 60 M.J. at 207-208.
60 Id.

limited circumstances, usually only when the CAAF has also granted review.
Legislation introduced in the 110th Congress would expand Supreme Court
jurisdiction over military cases by authorizing Supreme Court review even if the
CAAF had denied an appeal. If this measure became law, it would make moot the
question highlighted by United States v. Stevenson regarding the Supreme Court’s
jurisdiction over specific issues that the CAAF had declined to review.