Will the U.S. Supreme Court soon be reviewing 167 courts-martial?

One hundred seventy-four service members have consolidated their appeals into 167 cases. They hope to have the U.S. Supreme Court review their cases, not for substantive error, but for an unusual procedural error. The legitimacy of some of the judges who heard these cases is being challenged. And even more unusual is that the challenge comes under a Civil War era law that has never been interpreted by the Court.

Some military JAG officer serve in the capacity as a judge on courts-martial. Four were also appointed to the Court of Military Commission Review (CMCR) - a commission that reviews Guantanamo Bay proceedings on their way to the D.C. Circuit. This is considered a civilian office. Where this runs afoul is that the 1870 statute prohibits military judges from concurrently holding a nonmilitary office unless the judge has specific permission to do so.

The 1870 statute, which the Supreme Court has never interpreted, prohibits active-duty military officers from concurrently holding a civil office, unless Congress expressly authorizes the dual office-holding. Congress enacted the law to ensure civilian control of the government. The remedy for dual office-holding was to sever immediately the military officer's service connection.

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Military judges are executive branch inferior officers for purposes of the appointments clause. But because the CMCR—unlike military courts of criminal appeals—is not subject to supervision within the executive branch, its judges are principal officers who require appointment by the president, with the advice and consent of the Senate. And CMCR judges hold a "civil office" by virtue of its creation as an Article I federal court, the challengers allege.

A 1979 Justice Department Office of Legal Counsel memo on the dual office-holding statute concluded: “Where Congress wishes to permit a military officer to occupy a civilian position … without forfeiting his commission, it has done so explicitly.”

Most convicted service-members never have the opportunity for the U.S. Supreme Court to review their cases. The military justice system is maintained separate and apart from the civilian system, complete with its own court of last resort - the U.S. Court of Appeals for the Armed Forces. Each service has its own intermediate court of appeals for review of the trial level court-martial.

If the U.S. Supreme Court were to grant review on these cases, it would represent a unique circumstance even beyond the substantive necessity of reviewing a previously unremarkable, nearly 150 year old statute. The Court has not reviewed a court-martial in over twenty years.

With the concept of civilian control over the military becoming more prominent in political philosophy discussions, this issue may have a good chance of being granted review by the Court.