Content area
Full Text
Introduction
In September 2017, the Supreme Court granted certiorari in Ortiz v. United States, a case challenging the appointment of a military judge.1 The case, which had come to the Court on appeal from the Court of Appeals for the Armed Forces (CAAF), was quickly complicated by an amicus brief arguing that the Court lacked jurisdiction to hear the appeal.2 In his brief, Professor Aditya Bamzai argued that, because the Court's appellate jurisdiction extends only to appeals of existing cases, the Court had no authority to hear a direct appeal from the CAAF, an Article I court located in the executive branch.3 The Court ultimately determined that appeals from the CAAF are within its jurisdiction, but the Justices allotted time for Bamzai to present at oral argument4 and devoted nine pages to the jurisdictional question in their majority opinion.5 As Justice Kagan remarked when announcing the decision, Bamzai's arguments "provoked some good and hard thinking on all sides."6
This good, hard thinking about the Court's appellate jurisdiction raises another fundamental question, albeit not one directly at issue in Ortiz: Does a government appeal from the CAAF represent a justiciable case or controversy under Article III of the Constitution? This Comment analyzes the Court's jurisprudence on Article Ill's adverseness requirement, arguing that government appeals from the CAAF may represent a form of non-justiciable intrabranch litigation. Part I provides background on the structure of the CAAF and introduces the problem posed by government appeals from this tribunal to the Supreme Court. Part II explores the Court's jurisprudence, as well as current scholarship, on intrabranch litigation and the requirement of adverse parties. Finally, Part III returns to Ortiz to examine how the Court's recent characterization of the military justice system may reconcile the doctrinal and theoretical issues presented in the preceding sections. Although the Court in Ortiz did not address this broader justiciability issue, the majority's focus on the judicial nature of the CAAF provides a path to finding a justiciable controversy in government appeals from the CAAF. Moreover, the decision in Ortiz suggests that the Court is increasingly willing to approach questions of military justice from a functionalist perspective, undermining the unitary executive theory and minimizing the importance of original understanding when it comes to this tribunal.