Ortiz v. United States , 201 L. Ed. 2d 601 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ORTIZ v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
No. 16–1423. Argued January 16, 2018—Decided June 22, 2018
Congress has long provided for specialized military courts to adjudicate
charges against service members. Today, courts-martial hear cases
involving crimes unconnected with military service. They are also
subject to several tiers of appellate review, and thus are part of an in-
tegrated “court-martial system” that resembles civilian structures of
justice. That system begins with the court-martial itself, a tribunal
that determines guilt or innocence and levies punishment, up to life-
time imprisonment or execution. The next phase occurs at one of four
appellate courts: the Court of Criminal Appeals (CCA) for the Army,
Navy-Marine Corps, Air Force, or Coast Guard. They review deci-
sions where the sentence is a punitive discharge, incarceration for
more than one year, or death. The Court of Appeals for the Armed
Forces (CAAF) sits atop the court-martial system. The CAAF is a
“court of record” composed of five civilian judges, 10 U.S. C. §941,
which must review certain weighty cases and may review others. Fi-
nally, 28 U.S. C. §1259 gives this Court jurisdiction to review the
CAAF’s decisions by writ of certiorari.
Petitioner Keanu Ortiz, an Airman First Class, was convicted by a
court-martial of possessing and distributing child pornography, and
he was sentenced to two years’ imprisonment and a dishonorable dis-
charge. An Air Force CCA panel, including Colonel Martin Mitchell,
affirmed that decision. The CAAF then granted Ortiz’s petition for
review to consider whether Judge Mitchell was disqualified from
serving on the CCA because he had been appointed to the Court of
Military Commission Review (CMCR). The Secretary of Defense had
initially put Judge Mitchell on the CMCR under his statutory author-
ity to “assign [officers] who are appellate military judges” to serve on
that court. 10 U.S. C. §950f(b)(2). To moot a possible constitutional
2 ORTIZ v. UNITED STATES
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problem with the assignment, the President (with the Senate’s advice
and consent) also appointed Judge Mitchell to the CMCR pursuant to
§950f(b)(3). Shortly thereafter, Judge Mitchell participated in Ortiz’s
CCA appeal.
Ortiz claimed that Judge Mitchell’s CMCR appointment barred his
continued CCA service under both a statute and the Constitution.
First, he argued that the appointment violated §973(b)(2)(A), which
provides that unless “otherwise authorized by law,” an active-duty
military officer “may not hold, or exercise the functions of,” certain
“civil office[s]” in the federal government. Second, he argued that the
Appointments Clause prohibits simultaneous service on the CMCR
and the CCA. The CAAF rejected both grounds for ordering another
appeal.
Held:
1. This Court has jurisdiction to review the CAAF’s decisions. The
judicial character and constitutional pedigree of the court-martial
system enable this Court, in exercising appellate jurisdiction, to re-
view the decisions of the court sitting at its apex.
An amicus curiae, Professor Aditya Bamzai, argues that cases de-
cided by the CAAF do not fall within Article III’s grant of appellate
jurisdiction to this Court. In Marbury v. Madison, 1 Cranch 137,
Chief Justice Marshall explained that “the essential criterion of ap-
pellate jurisdiction” is “that it revises and corrects the proceedings in
a cause already instituted, and does not create that cause.” Id., at
175. Here, Ortiz’s petition asks the Court to “revise and correct” the
latest decision in a “cause” that began in and progressed through mil-
itary justice “proceedings.” Unless Chief Justice Marshall’s test im-
plicitly exempts cases instituted in a military court, the case is now
appellate.
There is no reason to make that distinction. The military justice
system’s essential character is judicial. Military courts decide cases
in strict accordance with a body of federal law and afford virtually
the same procedural protections to service members as those given in
a civilian criminal proceeding. The judgments a military tribunal
renders “rest on the same basis, and are surrounded by the same
considerations[, as] give conclusiveness to the judgments of other le-
gal tribunals.” Ex parte Reed, 100 U.S. 13, 23. Accordingly, such
judgments have res judicata and Double Jeopardy effect. The juris-
diction and structure of the court-martial system likewise resemble
those of other courts whose decisions this Court reviews. Courts-
martial try service members for garden-variety crimes unrelated to
military service, and can impose terms of imprisonment and capital
punishment. Their decisions are also subject to an appellate process
similar to the one found in most States. And just as important, the
Cite as: 585 U. S. ____ (2018) 3
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constitutional foundation of courts-martial is not in the least inse-
cure. See Dynes v. Hoover, 20 How. 65, 79. The court-martial is older
than the Constitution, was recognized and sanctioned by the Fram-
ers, and has been authorized here since the first Congress. Through-
out that history, courts-martial have operated as instruments of mili-
tary justice, not mere military command. They are bound, like any
court, by the fundamental principles of law and the duty to adjudi-
cate cases without partiality.
Bamzai argues that the Court lacks jurisdiction because the CAAF
is not an Article III court, but is instead in the Executive Branch.
This Court’s appellate jurisdiction, however, covers more than the de-
cisions of Article III courts. This Court can review proceedings of
state courts. See Martin v. Hunter’s Lessee, 1 Wheat. 304. It can also
review certain non-Article III judicial systems created by Congress.
In particular, the Court has upheld its exercise of appellate jurisdic-
tion over decisions of non-Article III territorial courts, see United
States v. Coe, 155 U.S. 76, and it has uncontroversially exercised ap-
pellate jurisdiction over non-Article III District of Columbia courts,
see Palmore v. United States, 411 U.S. 389. The non-Article III
court-martial system stands on much the same footing as territorial
and D. C. courts. All three rest on an expansive constitutional dele-
gation, have deep historical roots, and perform an inherently judicial
role. Thus, in Palmore, this Court viewed the military, territories,
and District as “specialized areas having particularized needs” in
which Article III “give[s] way to accommodate plenary grants of pow-
er to Congress.” Id., at 408.
Bamzai does not provide a sufficient reason to divorce military
courts from territorial and D. C. courts when it comes to defining this
Court’s appellate jurisdiction. He first relies on the fact that territo-
rial and D. C. courts exercise power over discrete geographic areas,
while military courts do not. But this distinction does not matter to
the jurisdictional inquiry. His second argument focuses on the fact
that the CAAF is in the Executive Branch. In his view, two of the
Court’s precedents—Ex parte Vallandigham, 1 Wall. 243, and Mar-
bury, 1 Cranch 137—show that the Court may never accept appellate
jurisdiction from any person or body within that branch. As to Val-
landigham, that case goes to show only that not every military tribu-
nal is alike. Unlike the military commission in Vallandigham, which
lacked “judicial character,” 1 Wall., at 253, the CAAF is a permanent
court of record established by Congress, and its decisions are final
unless the Court reviews and reverses them. As to Marbury, James
Madison’s failure to transmit William Marbury’s commission was not
a judicial decision by a court. Here, by contrast, three constitutional-
ly rooted courts rendered inherently judicial decisions. Pp. 5–19.
4 ORTIZ v. UNITED STATES
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2. Judge Mitchell’s simultaneous service on the CCA and the
CMCR violated neither §973(b)(2)(A) nor the Appointments Clause.
Pp. 19–25.
(a) The statutory issue turns on two interlocking provisions. Sec-
tion 973(b)(2)(A) is the statute that Ortiz claims was violated here. It
prohibits military officers from “hold[ing], or exercis[ing] the func-
tions of,” certain “civil office[s]” in the federal government, “[e]xcept
as otherwise authorized by law.” Section 950f(b) is the statute that
the Government claims “otherwise authorize[s]” Judge Mitchell’s
CMCR service, even if a seat on that court is a covered “civil office.”
It provides two ways to become a CMCR judge. Under §950f(b)(2),
the Secretary of Defense “may assign” qualified officers serving on a
CCA to be judges on the CMCR. Under §950f(b)(3), the President
(with the Senate’s advice and consent) “may appoint” persons—
whether officers or civilians is unspecified—to CMCR judgeships.
Ortiz argues that Judge Mitchell was not “authorized by law” to
serve on the CMCR after his appointment because §950f(b)(3) makes
no express reference to military officers. In the circumstances here,
however, the express authorization to assign military officers to the
CMCR under §950f(b)(2) was the only thing necessary to exempt
Judge Mitchell from §973(b)(2)(A). Once the Secretary of Defense
placed Judge Mitchell on the CMCR pursuant to §950f(b)(2), the
President’s later appointment made no difference. It did not negate
the Secretary’s earlier action, but rather ratified what the Secretary
had already done. Thus, after the appointment, Judge Mitchell
served on the CMCR by virtue of both the Secretary’s assignment and
the President’s appointment. And because §950f(b)(2) expressly au-
thorized the Secretary’s assignment, Judge Mitchell’s CMCR service
could not run afoul of §973(b)(2)(A)’s general rule. Pp. 20–23.
(b) Ortiz also raises an Appointments Clause challenge to Judge
Mitchell’s simultaneous service on the CCA and the CMCR. That
Clause distinguishes between principal officers and inferior officers.
CCA judges are inferior officers. Ortiz views CMCR judges as princi-
pal officers. And Ortiz argues that, under the Appointments Clause,
a single judge cannot serve as an inferior officer on one court and a
principal officer on another. But the Court has never read the Ap-
pointments Clause to impose rules about dual service, separate and
distinct from methods of appointment. And if the Court were ever to
apply the Clause to dual-officeholding, it would not start here. Ortiz
does not show how Judge Mitchell’s CMCR service would result in
“undue influence” on his CCA colleagues. Pp. 23–25.
76 M.J. 125 and 189, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
Cite as: 585 U. S. ____ (2018) 5
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C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined. THOMAS, J., filed a concurring opinion. ALITO, J., filed a dis-
senting opinion, in which GORSUCH, J., joined.
Cite as: 585 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1423
_________________
KEANU D. W. ORTIZ, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
[June 22, 2018]
JUSTICE KAGAN delivered the opinion of the Court.
This case is about the legality of a military officer serv-
ing as a judge on both an Air Force appeals court and the
Court of Military Commission Review (CMCR). The peti-
tioner, an airman convicted of crimes in the military jus-
tice system, contends that the judge’s holding of dual
offices violated a statute regulating military service, as
well as the Constitution’s Appointments Clause. The
Court of Appeals for the Armed Forces (CAAF) rejected
those claims, and we granted a petition for certiorari. We
hold first that this Court has jurisdiction to review deci-
sions of the CAAF, even though it is not an Article III
court. We then affirm the CAAF’s determination that the
judge’s simultaneous service was lawful.
I
In the exercise of its authority over the armed forces,
Congress has long provided for specialized military courts
to adjudicate charges against service members. Today,
trial-level courts-martial hear cases involving a wide
range of offenses, including crimes unconnected with
military service; as a result, the jurisdiction of those tri-
bunals overlaps substantially with that of state and federal
2 ORTIZ v. UNITED STATES
Opinion of the Court
courts. See Solorio v. United States, 483 U.S. 435, 436
(1987); United States v. Kebodeaux, 570 U.S. 387, 404
(2013) (ALITO, J., concurring in judgment). And courts-
martial are now subject to several tiers of appellate re-
view, thus forming part of an integrated “court-martial
system” that closely resembles civilian structures of jus-
tice. United States v. Denedo, 556 U.S. 904, 920 (2009);
see Weiss v. United States, 510 U.S. 163, 174 (1994).
That system begins with the court-martial itself, an
officer-led tribunal convened to determine guilt or inno-
cence and levy appropriate punishment, up to lifetime
imprisonment or execution. See 10 U.S. C. §§816, 818,
856a. The next phase of military justice occurs at one of
four appellate courts: the Court of Criminal Appeals (CCA)
for the Army, Navy-Marine Corps, Air Force, or Coast
Guard. Those courts, using three-judge panels of either
officers or civilians, review all decisions in which the
sentence imposed involves a punitive discharge, incarcera-
tion for more than one year, or death. See §§866(a)–(c).
Atop the court-martial system is the CAAF, a “court of
record” made up of five civilian judges appointed to serve
15-year terms. §941; see §§942(a)–(b). The CAAF must
review certain weighty cases (including those in which
capital punishment was imposed), and may grant petitions
for review in any others. See §867. Finally, this Court
possesses statutory authority to step in afterward: Under
28 U.S. C. §1259, we have jurisdiction to review the
CAAF’s decisions by writ of certiorari.
Petitioner Keanu Ortiz’s case has run the gamut of this
legal system. Ortiz, an Airman First Class in the Air
Force, was charged with knowingly possessing and dis-
tributing child pornography, in violation of the Uniform
Code of Military Justice. A court-martial found Ortiz
guilty as charged and imposed a sentence of two years’
imprisonment and a dishonorable discharge. On appeal,
an Air Force CCA panel, including Colonel Martin Mitch-
Cite as: 585 U. S. ____ (2018) 3
Opinion of the Court
ell, summarily affirmed the court-martial’s decision. The
CAAF then granted Ortiz’s petition for review to consider
whether Judge Mitchell was disqualified from serving on
the CCA, thus entitling Ortiz to an appellate do-over.
That issue arose from Judge Mitchell’s simultaneous
service on the CMCR. Congress created the CMCR as an
appellate tribunal to review the decisions of military
commissions, particularly those operating in Guantanamo
Bay.1 The Secretary of Defense put Judge Mitchell on that
court shortly after he became a member of the CCA, under
a statutory provision authorizing the Secretary to “assign
[officers] who are appellate military judges” to serve on
the CMCR as well. 10 U.S. C. §950f(b)(2). Around the
same time, a military-commission defendant argued to the
Court of Appeals for the D. C. Circuit that the Appoint-
ments Clause requires the President and Senate (rather
than the Secretary) to place judges on the CMCR. The
D. C. Circuit avoided resolving that issue, but suggested
that the President and Senate could “put [it] to rest” by
appointing the very CMCR judges whom the Secretary
had previously assigned. In re al-Nashiri, 791 F.3d 71, 86
(2015). The President decided to take that advice, and
nominated each of those judges—Mitchell, among them—
under an adjacent statutory provision authorizing him to
“appoint, by and with the advice and consent of the Sen-
ate,” CMCR judges. §950f(b)(3). The Senate then con-
firmed those nominations. About a month later, Judge
Mitchell—now wearing his CCA robe—participated in the
panel decision rejecting Ortiz’s appeal.
In Ortiz’s view, Judge Mitchell’s appointment to the
CMCR barred his continued service on the CCA under
——————
1 In contrast to courts-martial, military commissions have historically
been used to substitute for civilian courts in times of martial law or
temporary military government, as well as to try members of enemy
forces for violations of the laws of war. See Hamdan v. Rumsfeld, 548
U.S. 557, 595–597 (2006) (plurality opinion).
4 ORTIZ v. UNITED STATES
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both a statute and the Constitution. First, Ortiz invoked
10 U.S. C. §973(b). That statute, designed to ensure
civilian preeminence in government, provides that unless
“otherwise authorized by law,” an active-duty military
officer like Judge Mitchell “may not hold, or exercise the
functions of,” certain “civil office[s]” in the Federal Gov-
ernment. §973(b)(2)(A). According to Ortiz, a CMCR
judgeship is a covered civil office, and no other law allowed
the President to put Mitchell in that position: Thus, his
appointment to the CMCR violated §973(b). See Brief in
Support of Petition Granted in No. 16–0671 (CAAF),
pp. 17–22. And the proper remedy, Ortiz argued, was to
terminate Judge Mitchell’s military service effective the
date of his CMCR appointment and void all his later ac-
tions as a CCA judge—including his decision on Ortiz’s
appeal. See ibid. Second and independently, Ortiz relied
on the Appointments Clause to challenge Judge Mitchell’s
dual service. See id., at 27–40. The premise of his argu-
ment was that CMCR judges are “principal officers” under
that Clause, whereas CCA judges (as this Court has held)
are “inferior officers.” Edmond v. United States, 520 U.S.
651, 666 (1997). Ortiz claimed that the Appointments
Clause prohibits someone serving as a principal officer on
one court (the CMCR) from sitting alongside inferior
officers on another court (the CCA). Because Judge Mitch-
ell had done just that, Ortiz concluded, the CCA’s ruling on
his appeal could not stand.
The CAAF rejected both grounds for ordering another
appeal. See 76 M.J. 189 (2017). In considering the statu-
tory question, the court chose not to decide whether
§973(b) precluded Judge Mitchell from serving on the
CMCR while an active-duty officer. Even if so, the CAAF
held, the remedy for the violation would not involve ter-
minating the judge’s military service or voiding actions he
took on the CCA. See id., at 192. Turning next to the
constitutional issue, the CAAF “s[aw] no Appointments
Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
Clause problem.” Id., at 193. Even assuming Judge
Mitchell was a principal officer when sitting on the CMCR,
the court held, that status in no way affected his service
on the CCA: “When Colonel Mitchell sits as a CCA
judge, he is no different from any other CCA judge.” Ibid.
The CAAF thus upheld the CCA’s affirmance of Ortiz’s
convictions.
This Court granted Ortiz’s petition for certiorari to
consider whether either §973(b) or the Appointments
Clause prevents a military officer from serving, as Judge
Mitchell did, on both a CCA and the CMCR. 582 U. S. ___
(2017). We now affirm the decision below.2
II
We begin with a question of our own jurisdiction to
review the CAAF’s decisions. Congress has explicitly
authorized us to undertake such review in 28 U.S. C.
§1259. See ibid. (“Decisions of the [CAAF] may be re-
viewed by the Supreme Court by writ of certiorari”). Both
the Federal Government and Ortiz view that grant of
jurisdiction as constitutionally proper. But an amicus
curiae, Professor Aditya Bamzai, argues that it goes be-
yond what Article III allows. That position is a new one to
this Court: We have previously reviewed nine CAAF deci-
sions without anyone objecting that we lacked the power
to do so.3 Still, we think the argument is serious, and
——————
2 At the same time we issued a writ of certiorari in this case, we
granted and consolidated petitions in two related cases—Dalmazzi v.
United States, No. 16–961, and Cox v. United States, No. 16–1017.
Those cases raise issues of statutory jurisdiction that our disposition
today makes it unnecessary to resolve. We accordingly dismiss
Dalmazzi, post, p. ___, and Cox, post, p. ___, as improvidently granted
in opinions accompanying this decision.
3 See United States v. Denedo, 556 U.S. 904 (2009); Clinton v. Gold-
smith, 526 U.S. 529 (1999); United States v. Scheffer, 523 U.S. 303(1998); Edmond v. United States, 520 U.S. 651 (1997); Loving v. United
States, 517 U.S. 748 (1996); Ryder v. United States, 515 U.S. 1776 ORTIZ v. UNITED STATES
Opinion of the Court
deserving of sustained consideration. That analysis leads
us to conclude that the judicial character and constitu-
tional pedigree of the court-martial system enable this
Court, in exercising appellate jurisdiction, to review the
decisions of the court sitting at its apex.
Bamzai starts with a proposition no one can contest—
that our review of CAAF decisions cannot rest on our
original jurisdiction. Brief for Aditya Bamzai as Amicus
Curiae 11. Article III of the Constitution grants this
Court original jurisdiction in a limited category of cases:
those “affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party.” §2,
cl. 2. That list, of course, does not embrace Ortiz’s case, or
any other that the CAAF considers. And ever since Mar-
bury v. Madison, 1 Cranch 137 (1803), this Court has
recognized that our original jurisdiction cannot extend any
further than the cases enumerated: If Congress attempts
to confer more on us, we must (as Chief Justice Marshall
famously did, in the pioneer act of judicial review) strike
down the law. Id., at 174–180. As a result, Bamzai is
right to insist that §1259 could not authorize this Court,
as part of its original jurisdiction, to hear military cases
like Ortiz’s.
The real issue is whether our appellate jurisdiction can
cover such cases. Article III’s sole reference to appellate
jurisdiction provides no apparent barrier, but also no
substantial guidance: Following its specification of this
Court’s original jurisdiction, Article III says only that in
all “other Cases” that the Constitution comprehends (in-
cluding cases, like this one, involving federal questions),
“the supreme Court shall have appellate Jurisdiction, both
as to Law and Fact.” §2, cl. 2. The Constitution’s failure
——————
(1995); Davis v. United States, 512 U.S. 452 (1994); Weiss v. United
States, 510 U.S. 163 (1994); Solorio v. United States, 483 U.S. 435(1987).
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
to say anything more about appellate jurisdiction leads
Bamzai to focus on Chief Justice Marshall’s opinion in
Marbury. See Brief for Bamzai 2–4, 12–14. In that case
(as you surely recall), William Marbury petitioned this
Court—without first asking any other—to issue a writ of
mandamus to Secretary of State James Madison directing
him to deliver a commission. After holding (as just related)
that the Court’s original jurisdiction did not extend so far,
Chief Justice Marshall also rejected the idea that the
Court could provide the writ in the exercise of its appellate
jurisdiction. “[T]he essential criterion of appellate juris-
diction,” the Chief Justice explained, is “that it revises and
corrects the proceedings in a cause already instituted, and
does not create that cause.” 1 Cranch, at 175. Marbury’s
petition, Chief Justice Marshall held, commenced the
cause—or, to use the more modern word, the case; hence,
it was not a matter for appellate jurisdiction. Bamzai
contends that the same is true of Ortiz’s petition.
On any ordinary understanding of the great Chief Jus-
tice’s words, that is a surprising claim. Ortiz’s petition
asks us to “revise and correct” the latest decision in a
“cause” that began in and progressed through military
justice “proceedings.” Ibid. Or, as the Government puts
the point, this case fits within Chief Justice Marshall’s
standard because “it comes to th[is] Court on review of the
Court of Appeals for the Armed Forces’ decision, which
reviewed a criminal proceeding that originated in [a]
court[ ]-martial.” Tr. of Oral Arg. 47–48. So this Court
would hardly be the first to render a decision in the case.
Unless Chief Justice Marshall’s test implicitly exempts
cases instituted in a military court—as contrasted, for
example, with an ordinary federal court—the case is now
appellate.4
——————
4 The dissent asserts that, in setting out that test, we have “basically
proceed[ed] as though Marbury were our last word on the subject” and
8 ORTIZ v. UNITED STATES
Opinion of the Court
The military justice system’s essential character—in a
word, judicial—provides no reason to make that distinc-
tion. Accord post, at 6–8 (THOMAS, J., concurring). Each
level of military court decides criminal “cases” as that
term is generally understood, and does so in strict accord-
ance with a body of federal law (of course including the
Constitution). The procedural protections afforded to a
service member are “virtually the same” as those given in
a civilian criminal proceeding, whether state or federal. 1
D. Schlueter, Military Criminal Justice: Practice and
Procedure §1–7, p. 50 (9th ed. 2015) (Schlueter). And the
judgments a military tribunal renders, as this Court long
ago observed, “rest on the same basis, and are surrounded
by the same considerations[, as] give conclusiveness to the
judgments of other legal tribunals.” Ex parte Reed, 100
U.S. 13, 23 (1879). Accordingly, we have held that the
“valid, final judgments of military courts, like those of any
court of competent jurisdiction[,] have res judicata effect
and preclude further litigation of the merits.” Schlesinger
v. Councilman, 420 U.S. 738, 746 (1975). In particular,
those judgments have identical effect under the Double
Jeopardy Clause. See Grafton v. United States, 206 U. S.
——————
overlooked “two centuries of precedent.” Post, at 8 (opinion of ALITO,
J.). But the cases the dissent faults us for failing to cite stand for the
same principle that we—and more important, Marbury—already set
out. They too say that our appellate jurisdiction permits us to review
only prior judicial decisions, rendered by courts. See, e.g., Ex parte
Yerger, 8 Wall. 85, 97 (1869) (Our “appellate jurisdiction” may “be
exercised only in the revision of judicial decisions”); The Alicia, 7 Wall.
571, 573 (1869) (“[A]n appellate jurisdiction necessarily implies some
judicial determination . . . of an inferior tribunal, from which an appeal
has been taken”); Cohens v. Virginia, 6 Wheat. 264, 396 (1821) (In
exercising appellate jurisdiction, we act as a “supervising Court, whose
peculiar province it is to correct the errors of an inferior Court”); Ex
parte Bollman, 4 Cranch 75, 101 (1807) (We exercise “appellate juris-
diction” in “revisi[ng] a decision of an inferior court”); post, at 4–6, 10,
12. Marbury, then, remains the key precedent.
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
333, 345 (1907).
The jurisdiction and structure of the court-martial
system likewise resemble those of other courts whose
decisions we review. Although their jurisdiction has
waxed and waned over time, courts-martial today can try
service members for a vast swath of offenses, including
garden-variety crimes unrelated to military service. See
10 U.S. C. §§877–934; Solorio, 483 U. S., at 438–441;
supra, at 1–2. As a result, the jurisdiction of those tribu-
nals overlaps significantly with the criminal jurisdiction of
federal and state courts. See Kebodeaux, 570 U. S., at 404
(ALITO, J., concurring in judgment). The sentences meted
out are also similar: Courts-martial can impose, on top of
peculiarly military discipline, terms of imprisonment and
capital punishment. See §818(a); post, at 6 (THOMAS, J.,
concurring) (“[T]hese courts decide questions of the most
momentous description, affecting even life itself” (quota-
tion marks and ellipses omitted)). And the decisions of
those tribunals are subject to an appellate process—what
we have called an “integrated system of military courts
and review procedures”—that replicates the judicial appa-
ratus found in most States. Councilman, 420 U. S., at
758. By the time a case like Ortiz’s arrives on our door-
step under 28 U.S. C. §1259, it has passed through not
one or two but three military courts (including two that
can have civilian judges).
And just as important, the constitutional foundation of
courts-martial—as judicial bodies responsible for “the trial
and punishment” of service members—is not in the least
insecure. Dynes v. Hoover, 20 How. 65, 79 (1858). The
court-martial is in fact “older than the Constitution,” 1
Schlueter §1–6(B), at 39; the Federalist Papers discuss
“trials by courts-martial” under the Articles of Confedera-
tion, see No. 40, p. 250 (C. Rossiter ed. 1961). When it
came time to draft a new charter, the Framers “recog-
ni[zed] and sanction[ed] existing military jurisdiction,” W.
10 ORTIZ v. UNITED STATES
Opinion of the Court
Winthrop, Military Law and Precedents 48 (2d ed. 1920)
(emphasis deleted), by exempting from the Fifth Amend-
ment’s Grand Jury Clause all “cases arising in the land or
naval forces.” And by granting legislative power “[t]o
make Rules for the Government and Regulation of the
land and naval Forces,” the Framers also authorized
Congress to carry forward courts-martial. Art. I, §8, cl. 14.
Congress did not need to be told twice. The very first
Congress continued the court-martial system as it then
operated. See Winthrop, supra, at 47. And from that day
to this one, Congress has maintained courts-martial in all
their essentials to resolve criminal charges against service
members. See 1 Schlueter §1–6, at 35–48.
Throughout that history, and reflecting the attributes
described above, courts-martial have operated as instru-
ments of military justice, not (as the dissent would have it)
mere “military command,” post, at 18 (opinion of ALITO,
J.). As one scholar has noted, courts-martial “have long
been understood to exercise ‘judicial’ power,” of the same
kind wielded by civilian courts. Nelson, Adjudication in
the Political Branches, 107 Colum. L. Rev. 559, 576 (2007);
see W. De Hart, Observations on Military Law 14 (1859)
(Military courts are “imbued or endowed with the like
essence of judicial power” as “ordinary courts of civil judi-
cature”); accord post, at 6–8 (THOMAS, J., concurring).
Attorney General Bates, even in the middle of the Civil
War, characterized a court-martial “proceeding, from its
inception, [a]s judicial,” because the “trial, finding, and
sentence are the solemn acts of a court organized and
conducted under the authority of and according to the
prescribed forms of law.” Runkle v. United States, 122
U.S. 543, 558 (1887) (quoting 11 Op. Atty. Gen. 19, 21
(1864)). Colonel Winthrop—whom we have called the
“Blackstone of Military Law,” Reid v. Covert, 354 U.S. 1,
19, n. 38 (1957) (plurality opinion)—agreed with Bates.
He regarded a court-martial as “in the strictest sense” a
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
“court of law and justice”—“bound, like any court, by the
fundamental principles of law” and the duty to adjudicate
cases “without partiality, favor, or affection.” Winthrop,
supra, at 54.5
Despite all this, Bamzai claims that “Marbury bars
th[is] Court from deciding” any cases coming to us from
the court-martial system. Brief for Bamzai 3. He begins,
much as we did above, by explaining that under Marbury
the Court can exercise appellate jurisdiction only when it
is “supervising an earlier decision by a lower court.” Brief
for Bamzai 13. The next step is where the argument gets
interesting. The CAAF, Bamzai contends, simply does not
qualify as such a body (nor does any other military tribu-
nal). True enough, “the CAAF is called a ‘court’ ”; and true
enough, it decides cases, just as other courts do. Id., at 3;
see id., at 28. But the CAAF, Bamzai notes, is “not an
Article III court,” id., at 3 (emphasis added): As all agree,
——————
5 The independent adjudicative nature of courts-martial is not incon-
sistent with their disciplinary function, as the dissent claims, see post,
at 18–26. By adjudicating criminal charges against service members,
courts-martial of course help to keep troops in line. But the way they
do so—in comparison to, say, a commander in the field—is fundamen-
tally judicial. Accord post, at 9 (THOMAS, J., concurring) (“While the
CAAF is in the Executive Branch and its purpose is to help the Presi-
dent maintain troop discipline, those facts do not change the nature of
the power that it exercises”). Colonel Winthrop stated as much: Even
while courts-martial “enforc[e] discipline” in the armed forces, they
remain “as fully a court of law and justice as is any civil tribunal.” W.
Winthrop, Military Law and Precedents 49, 54 (2d ed. 1920). And he
was right. When a military judge convicts a service member and
imposes punishment—up to execution—he is not meting out extra-
judicial discipline. He is acting as a judge, in strict compliance with
legal rules and principles—rather than as an “arm of military com-
mand.” Post, at 18. It is in fact one of the glories of this country that
the military justice system is so deeply rooted in the rule of law. In
asserting the opposite—that military courts are not “judicial” in “char-
acter”—the dissent cannot help but do what it says it would like to
avoid: “denigrat[e the court-martial] system.” Post, at 27; see post,
at 25.
12 ORTIZ v. UNITED STATES
Opinion of the Court
its members lack the tenure and salary protections that
are the hallmarks of the Article III judiciary, see 10
U.S. C. §§942(b), (c). Congress established the CAAF
under its Article I, rather than its Article III, powers, and
Congress located the CAAF (as we have previously ob-
served) within the Executive Branch, rather than the
judicial one. See §941; Edmond, 520 U. S., at 664, and n.
2. Those facts, in Bamzai’s view, prevent this Court from
exercising appellate jurisdiction over the CAAF. “For
constitutional purposes,” Bamzai concludes, the members
of the CAAF “stand on equal footing with James Madison
in Marbury.” Brief for Bamzai 4. (With variations here
and there, the dissent makes the same basic argument.)
But this Court’s appellate jurisdiction, as Justice Story
made clear ages ago, covers more than the decisions of
Article III courts. In Martin v. Hunter’s Lessee, 1 Wheat.
304 (1816), we considered whether our appellate jurisdic-
tion extends to the proceedings of state courts, in addition
to those of the Article III federal judiciary. We said yes, as
long as the case involves subject matter suitable for our
review. Id., at 338–352. For our “appellate power,” Story
wrote, “is not limited by the terms of [Article III] to any
particular courts.” Id., at 338. Or again: “[I]t will be in
vain to search in the letter of the [C]onstitution for any
qualification as to the tribunal” from which a given case
comes. Ibid. The decisions we review might come from
Article III courts, but they need not.
The same lesson emerges from two contexts yet more
closely resembling this one—each involving a non-Article
III judicial system created by Congress. First, in United
States v. Coe, 155 U.S. 76 (1894), this Court upheld the
exercise of appellate jurisdiction over decisions of federal
territorial courts, despite their lack of Article III status.
We observed there that the Constitution grants Congress
broad authority over the territories: to “make all needful
Rules and Regulations respecting” those areas. Art. IV,
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Opinion of the Court
§3, cl. 2; see Coe, 155 U. S., at 85. And we recognized that
Congress, with this Court’s permission, had long used that
power to create territorial courts that did not comply with
Article III. See ibid. Chief Justice Marshall had held
such a court constitutional in 1828 even though its author-
ity was “not a part of that judicial power which is defined
in the 3d article.” American Ins. Co. v. 356 Bales of Cot-
ton, 1 Pet. 511, 546 (1828); see Coe, 155 U. S., at 85 (de-
scribing that opinion as having “settled” that Article III
“does not exhaust the power of Congress to establish
courts”). The exception to Article III for territorial courts
was thus an established and prominent part of the legal
landscape by the time Coe addressed this Court’s role in
reviewing their decisions. And so the Court found the
issue simple. “There has never been any question,” we
declared, “that the judicial action of [territorial courts]
may, in accordance with the Constitution, be subjected to
[our] appellate jurisdiction.” Id., at 86.
Second, we have routinely, and uncontroversially, exer-
cised appellate jurisdiction over cases adjudicated in the
non-Article III District of Columbia courts.6 Here too, the
Constitution grants Congress an unqualified power: to
legislate for the District “in all Cases whatsoever.” Art. I,
§8, cl. 17. Under that provision, we long ago determined,
“Congress has the entire control over the [D]istrict for
every purpose of government,” including that of “organiz-
ing a judicial department.” Kendall v. United States ex rel.
Stokes, 12 Pet. 524, 619 (1838). So when Congress in-
——————
6 See,e.g., Artis v. District of Columbia, 583 U. S. ___ (2018); Turner
v. United States, 582 U. S. ___ (2017); United States v. Dixon, 509 U.S.
688 (1993); Jones v. United States, 463 U.S. 354 (1983); Tuten v.
United States, 460 U.S. 660 (1983); Whalen v. United States, 445 U.S.
684 (1980); United States v. Crews, 445 U.S. 463 (1980); Pernell v.
Southall Realty, 416 U.S. 363 (1974); Palmore v. United States, 411
U.S. 389 (1973). In none of these or similar cases has anyone ever
challenged our appellate jurisdiction.
14 ORTIZ v. UNITED STATES
Opinion of the Court
voked that authority to create a set of local courts, this
Court upheld the legislation—even though the judges on
those courts lacked Article III protections. See Palmore v.
United States, 411 U.S. 389, 407–410 (1973). We relied
on the Constitution’s “plenary grant[ ] of power to Con-
gress to legislate with respect to” the national capital. Id.,
at 408. And several years later, we referred as well to the
“historical consensus” supporting congressional latitude
over the District’s judiciary. Northern Pipeline Constr. Co.
v. Marathon Pipe Line Co., 458 U.S. 50, 70 (1982) (plural-
ity opinion); see id., at 65, n. 16. To be sure, we have
never explicitly held, as we did in the territorial context,
that those same considerations support our appellate
jurisdiction over cases resolved in the D. C. courts. But
some things go unsaid because they are self-evident. And
indeed, even Bamzai readily acknowledges that this Court
can review decisions of the D. C. Court of Appeals. See
Brief for Bamzai 23, 25.
The non-Article III court-martial system stands on
much the same footing as territorial and D. C. courts, as
we have often noted. The former, just like the latter, rests
on an expansive constitutional delegation: As this Court
early held, Article I gives Congress the power—“entirely
independent” of Article III—“to provide for the trial and
punishment of military and naval offences in the manner
then and now practiced by civilized nations.” Dynes, 20
How., at 79; see supra, at 9. The former has, if anything,
deeper historical roots, stretching from before this nation’s
beginnings up to the present. See supra, at 9. And the
former, no less than the others, performs an inherently
judicial role, as to substantially similar cases. See supra,
at 8–11. So it is not surprising that we have lumped the
three together. In Palmore, the Court viewed the military,
territories, and District as a triad of “specialized areas
having particularized needs” in which Article III “give[s]
way to accommodate plenary grants of power to Congress.”
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Opinion of the Court
411 U. S., at 408. And in Northern Pipeline, the plurality
said of all three that “a constitutional grant of power [as]
historically understood” has bestowed “exceptional pow-
ers” on Congress to create courts outside Article III. 458
U. S., at 66, 70.7 Given those well-understood connections,
we would need a powerful reason to divorce military
courts from territorial and D. C. courts when it comes to
defining our appellate jurisdiction.
And Bamzai fails to deliver one. His initial attempt
relies on a simple fact about territorial and D. C. courts:
They exercise power over “discrete geographic areas.”
Brief for Bamzai 23. Military courts do not; they instead
exercise power over discrete individuals—i.e., members of
the armed forces. So Bamzai gives us a distinction: places
vs. people. What he does not offer is a good reason why
that distinction should matter in our jurisdictional in-
quiry—why it is one of substance, rather than conven-
——————
7 In addition, several Justices in separate opinions have made the
same linkage. See, e.g., Wellness Int’l Network, Ltd. v. Sharif, 575 U.S.
___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 3) (noting that
“narrow exceptions permit Congress to establish non-Article III courts
to exercise general jurisdiction in the territories and the District of
Columbia [and] to serve as military tribunals”); id., at ___–___
(THOMAS, J., dissenting) (slip op., at 7–8) (referring to territorial courts
and courts-martial as “unique historical exceptions” to Article III);
Stern v. Marshall, 564 U.S. 462, 504–505 (2011) (Scalia, J., concurring)
(noting the “firmly established historical practice” of exempting territo-
rial courts and courts-martial from Article III’s demands).
The dissent must dismiss all this authority, from Justices both
functionalist and formalist, to aver that “it is only when Congress
legislates for the Territories and the District that it may lawfully vest
judicial power in tribunals that do not conform to Article III.” Post, at
16; see post, at 14–16. Not so, we have made clear, because (once
again) of an exceptional grant of power to Congress, an entrenched
historical practice, and (for some more functionalist judges) particular-
ized needs. The result is “that Congress has the power [apart from
Article III] to provide for the adjudication of disputes among the Armed
Forces,” just as in the territories and the District. Wellness, 575 U. S.,
at ___ (THOMAS, J., dissenting) (slip op., at 8).
16 ORTIZ v. UNITED STATES
Opinion of the Court
ience. He mentions that the territorial and D. C. courts
are “functional equivalents of state courts.” Id., at 24; see
Tr. of Oral Arg. 33, 35. But for starters, that could be said
of courts-martial too. As we have described, they try all
the “ordinary criminal offenses” (murder, assault, robbery,
drug crimes, etc., etc., etc.) that state courts do. Kebo-
deaux, 570 U. S., at 404 (ALITO, J., concurring in judg-
ment); see supra, at 1–2, 9. And more fundamentally, we
do not see why geographical state-likeness, rather than
historical court-likeness, should dispose of the issue. As
we have shown, the petition here asks us to “revise[] and
correct[ ] the proceedings in a cause already instituted” in
a judicial system recognized since the founding as compe-
tent to render the most serious decisions. Marbury, 1
Cranch, at 175; see supra, at 8–11. That should make the
case an appeal, whether or not the domain that system
covers is precisely analogous to, say, Alabama.
So Bamzai tries another route to cleave off military
courts, this time focusing on their location in the Execu-
tive Branch. See Brief for Bamzai 26–30. Bamzai actually
never says in what branch (if any) he thinks territorial
and D. C. courts reside. But he knows—because this
Court has said—that the CAAF is an “Executive Branch
entity.” Edmond, 520 U. S., at 664, and n. 2; see supra, at
12. And in Bamzai’s view, two of our precedents show that
we may never accept appellate jurisdiction from any per-
son or body within that branch. See Brief for Bamzai 2–4.
The first case he cites is Ex parte Vallandigham, 1 Wall.
243 (1864), in which the Court held that it lacked jurisdic-
tion over decisions of a temporary Civil War-era military
commission. See id., at 251–252. The second is Marbury
itself, in which the Court held (as if this needed repeating)
that it lacked jurisdiction to review James Madison’s
refusal to deliver a commission appointing William Mar-
bury a justice of the peace. See 1 Cranch, at 175–176;
supra, at 7.
Cite as: 585 U. S. ____ (2018) 17
Opinion of the Court
As to the first, Vallandigham goes to show only that not
every military tribunal is alike. The commission the
Court considered there was established by General Am-
brose Burnside (he of the notorious facial hair) for a time-
limited, specialized purpose—to try persons within the
military Department of Ohio (Burnside’s then-command)
for aiding the Confederacy. See 1 Wall., at 243–244. And
the General kept firm control of the commission (made up
entirely of his own field officers): After personally ordering
Vallandigham’s arrest, he (and he alone) also reviewed the
commission’s findings and sentence. See id., at 247–248;
J. McPherson, Battle Cry of Freedom 596–597 (1988).
This Court therefore found that the commission lacked
“judicial character.” 1 Wall., at 253. It was more an ad-
junct to a general than a real court—and so we did not
have appellate jurisdiction over its decisions.8 But the
——————
8 The dissent offers a different—and doubly misleading—explanation
for Vallandigham. First, it says that we found jurisdiction lacking
because the commission was “was not one of the ‘courts of the United
States’ established under Article III.” Post, at 11 (quoting Vallan-
digham, 1 Wall., at 251). But the dissent is reading from the wrong
part of the opinion. Vallandigham contained two holdings—first (and
relevant here), that Article III precluded the Court from exercising
appellate jurisdiction over the commission’s decisions, and second (and
irrelevant here), that the Judiciary Act of 1789 had not authorized such
jurisdiction. The language the dissent quotes relates only to the
irrelevant statutory holding: The Judiciary Act, the Court explained,
confined our jurisdiction to decisions of Article III courts, and the
commission did not fit under that rubric. By contrast, the language we
quote in the text formed the basis of the Court’s constitutional hold-
ing—which is all that matters here. Second, the dissent contends that
Vallandigham “recognized that the military tribunal had ‘judicial
character,’” even as it found jurisdiction lacking. Post, at 11. Not so.
Vallandigham expressly rejected the argument that the commission
had “judicial character.” 1 Wall., at 253. Though the Court understood
that the commission pronounced guilt and imposed sentences, it did not
think the commission was acting as a court in rendering its decisions.
See ibid. (citing United States v. Ferreira, 13 How. 40, 46–47 (1852), in
which the Court held that a claims tribunal was without judicial
18 ORTIZ v. UNITED STATES
Opinion of the Court
very thing that Burnside’s commission lacked, the court-
martial system—and, in particular, the CAAF (whose
decision Ortiz asks us to review)—possesses in spades.
Once again, the CAAF is a permanent “court of record”
created by Congress; it stands at the acme of a firmly
entrenched judicial system that exercises broad jurisdic-
tion in accordance with established rules and procedures;
and its own decisions are final (except if we review and
reverse them). See supra, at 1–2, 8–11.9 That is “judicial
character” more than sufficient to separate the CAAF from
Burnside’s commission, and align it instead with territorial
and D. C. (and also state and federal) courts of appeals.
And the differences between the CAAF’s decisions and
James Madison’s delivery refusal should have already
leaped off the page. To state the obvious: James Madison
was not a court, either in name or in function. He was the
Secretary of State—the head of a cabinet department
(and, by the way, the right arm of the President). Like-
wise, Madison’s failure to transmit Marbury’s commission
was not a judicial decision; it was an enforcement action
(though in the form of non-action), pertaining only to the
——————
“character” and labeled its decisions the “award[s] of a commissioner,”
“not the judgment[s] of a court of justice”).
9 The dissent contends that the CAAF’s decisions are not always final
because the President, relevant branch secretary, or one of his subordi-
nates must approve a sentence of death or dismissal from the armed
forces before it goes into effect. See post, at 28–29. But as the Govern-
ment has explained, the President’s (or other executive official’s)
authority at that stage extends only to punishment: It is “akin to relief
by commutation in the federal or state system.” Tr. of Oral Arg. 57; see
Loving v. United States, 62 M.J. 235, 247 (CAAF 2005) (likening the
approval authority to “executive clemency powers”). The President,
even when “mitigat[ing a] sentence[,]” cannot “upset[ ] the conviction”
or “the judgment of the CAAF.” Tr. of Oral Arg. 55–56. Rather, as we
said above, the CAAF’s judgment is final when issued (except if we
reverse it). See 10 U.S. C. §871(c)(1) (stating that even when a sen-
tence is subject to an executive official’s approval, the “judgment” is
“final” when judicial review is concluded).
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Opinion of the Court
execution of law. As Chief Justice Marshall saw, Secre-
tary Madison merely triggered the case of Marbury v.
Madison; he did not hear and resolve it, as a judicial body
would have done. See 1 Cranch, at 175. The Chief Jus-
tice’s opinion thus cleanly divides that case from this one,
even if both (as Bamzai notes) formally involve executive
officers. Here, three constitutionally rooted courts, ending
with the CAAF, rendered inherently judicial decisions—
just as such tribunals have done since our nation’s found-
ing. In reviewing, “revis[ing,] and correct[ing]” those
proceedings, as Ortiz asks, we do nothing more or different
than in generally exercising our appellate jurisdiction.
Ibid.
But finally, in holding that much, we say nothing about
whether we could exercise appellate jurisdiction over cases
from other adjudicative bodies in the Executive Branch,
including those in administrative agencies. Our resolution
of the jurisdictional issue here has rested on the judicial
character, as well as the constitutional foundations and
history, of the court-martial system. We have relied, too,
on the connections that our cases have long drawn be-
tween that judicial system and those of the territories and
the District. If Congress were to grant us appellate juris-
diction over decisions of newer entities advancing an
administrative (rather than judicial) mission, the question
would be different—and the answer not found in this
opinion.
III
We may now turn to the issues we took this case to
decide. Recall that Ortiz seeks a new appeal proceeding
before the Air Force CCA, based on Judge Mitchell’s par-
ticipation in his last one. See supra, at 2–4. Ortiz’s chal-
lenge turns on Judge Mitchell’s simultaneous service on
another court, the CMCR. Originally, the Secretary of
Defense had assigned Judge Mitchell to sit on that court.
20 ORTIZ v. UNITED STATES
Opinion of the Court
Then, to moot a possible constitutional problem with
Judge Mitchell’s CMCR service, the President (with the
Senate’s advice and consent) appointed Judge Mitchell as
well. A short time later, Judge Mitchell ruled on Ortiz’s
CCA appeal. Ortiz contends that doing so violated both a
federal statute and the Appointments Clause. We dis-
agree on both counts.
A
The statutory issue respecting Judge Mitchell’s dual
service turns on two interlocking provisions. The first is
§973(b)(2)(A)—the statute Ortiz claims was violated here.
As noted earlier, that law—in the interest of ensuring
civilian preeminence in government—prohibits active-duty
military officers like Judge Mitchell from “hold[ing], or
exercis[ing] the functions of,” certain “civil office[s]” in the
Federal Government, “[e]xcept as otherwise authorized by
law.” See supra, at 4. The second is §950f(b)—a statute
the Government claims “otherwise authorize[s]” Judge
Mitchell’s service on the CMCR, even if a seat on that
court is a covered “civil office.” As also noted above,
§950f(b) provides two ways to become a CMCR judge. See
supra, at 3. Under §950f(b)(2), the Secretary of Defense
“may assign” qualified officers serving on a CCA to “be
judges on the [CMCR]” as well. And under §950f(b)(3), the
President (with the Senate’s advice and consent) “may
appoint” persons—whether officers or civilians is unspeci-
fied—to CMCR judgeships.
Against that statutory backdrop, Ortiz claims that
Judge Mitchell became disqualified from serving on the
CCA the moment his presidential appointment to the
CMCR became final. See Brief for Petitioners 39–42.
Notably, Ortiz has no statutory objection to Judge Mitch-
ell’s simultaneous service on those courts before that
date—when he sat on the CMCR solely by virtue of the
Secretary of Defense’s assignment. See id., at 40. Nor
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Opinion of the Court
could he reasonably lodge such a complaint, for
§950f(b)(2), in no uncertain terms, “otherwise authorize[s]”
the Secretary to place a military judge on the CMCR—
thus exempting such an officer from §973(b)(2)(A)’s prohi-
bition. But in Ortiz’s view, the provision in §950f(b)(3) for
presidential appointments contains no similar authoriza-
tion, because it makes no “express[ ] or unambiguous[ ]”
reference to military officers. Id., at 20. And so, Ortiz
concludes, §973(b)(2)(A)’s general rule must govern.
In the circumstances here, however, the authorization in
§950f(b)(2) was the only thing necessary to exempt Judge
Mitchell from the civil office-holding ban—not just before
but also after his presidential appointment. That provi-
sion, as just noted, unambiguously permitted the Secre-
tary of Defense to place Judge Mitchell on the CMCR,
even if such a judgeship is a “civil office.” See supra, at 20.
And once that happened, the President’s later appoint-
ment of Judge Mitchell made not a whit of difference.
Nothing in §950f (or any other law) suggests that the
President’s appointment erased or otherwise negated the
Secretary’s earlier action. To the contrary, that appoint-
ment (made for purposes of protecting against a constitu-
tional challenge, see supra, at 3) merely ratified what the
Secretary had already done. The nomination papers that
the President submitted to the Senate reflect that fact.
They sought confirmation of Judge Mitchell’s appointment
as a CMCR judge “[i]n accordance with [his] continued
status as [a CMCR] judge pursuant to [his] assignment by
the Secretary of Defense[,] under 10 U.S. C. Section
950f(b)(2).” 162 Cong. Rec. S1474 (Mar. 14, 2016). So
after the Senate approved the nomination, Judge Mitchell
served on the CMCR by virtue of both the Secretary’s
assignment and the President’s appointment. And be-
cause §950f(b)(2) expressly authorized the Secretary’s
assignment, Judge Mitchell’s service on the CMCR could
22 ORTIZ v. UNITED STATES
Opinion of the Court
not run afoul of §973(b)(2)(A)’s general rule.10
Ortiz argues in response that the President’s appoint-
ment demanded its own clear authorization because only
that appointment put Judge Mitchell into a “new office.”
Reply Brief 7. According to Ortiz, an officer who receives a
secretarial assignment to the CMCR “exercise[s] additional
duties”—but he does not hold a second position. Tr. of
Oral Arg. 13. A presidential appointment alone, he says,
effects that more dramatic change. And Ortiz contends
that §973(b)(2)(A)’s rule cares about that difference. That
law, Ortiz says, requires a legislative authorization when,
and only when, a service member receives a whole new
office—which is to say here when, and only when, the
President appoints a judge to the CMCR. See Tr. of Oral
Arg. 4–5 (stating that §973(b)(2)(A) “prohibit[s] military
officers from holding [civil offices] absent express con-
gressional authorization, while generally allowing mili-
tary officers to be assigned to exercise the duties of such
positions”).
But that argument is contrary to §973(b)(2)(A)’s text, as
well as to the purposes it reflects. The statute draws no
distinction between secretarial assignees and presidential
appointees, nor between those who exercise the duties of
an office and those who formally hold it. True enough, we
have sometimes referred to §973(b)(2)(A) as a rule about
——————
10 We state no opinion on a broader argument the Government
makes—that §950f(b)(2) would exempt Judge Mitchell from
§973(b)(2)(A)’s office-holding ban even if the Secretary had not assigned
him to the CMCR before the President’s appointment. See Brief for
United States 27–29. And because we hold that the Secretary’s as-
signment authorized Judge Mitchell to serve on the CMCR while an
active-duty military officer, we need not decide whether a CMCR
judgeship is a covered “civil office” subject to §973(b)(2)(A). Neither
need we address the remedial issue on which the CAAF ruled, see
supra, at 4—i.e., whether a violation of §973(b)(2)(A) would have
immediately terminated Judge Mitchell’s military service and voided
later decisions he made (including in Ortiz’s case) as a military judge.
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Opinion of the Court
dual “office-holding,” see supra, at 21, 22, n. 10—but that
is mere shorthand. In fact, §973(b)(2)(A)’s prohibition
applies broadly, and uniformly, to any military officer who
“hold[s], or exercise[s] the functions of,” a covered civil
office. And the “except as otherwise authorized” caveat
applies in the same way—to “hold[ing]” and “exercis[ing]”
alike. So the very distinction that Ortiz relies on, the
statute rejects: Indeed, the law could not be clearer in its
indifference. That is because Congress determined that
military officers threaten civilian preeminence in govern-
ment by either “hold[ing]” or “exercis[ing] the functions of ”
important civil offices. Except . . . if Congress decides
otherwise and says as much.
And once again, here Congress did exactly that. Judge
Mitchell became a CMCR judge, while remaining in the
military, because of a secretarial assignment that Con-
gress explicitly authorized. See supra, at 20–21. After his
presidential appointment, he continued on the same court,
doing the same work, in keeping with the same congres-
sional approval. Even supposing he obtained a “new
office” in the way Ortiz says, that acquisition is of no
moment. With or without that formal office, Judge Mitch-
ell “h[e]ld, or exercise[d] the functions of,” a CMCR judge-
ship, and so was subject to §973(b)(2)(A)’s ban. But like-
wise, with or without that formal office, Judge Mitchell
could receive permission from Congress to do the job—that
is, to sit as a judge on the CMCR. And §950f(b)(2) gave
Judge Mitchell that legislative green light, from the date
of his assignment through his ruling on Ortiz’s case and
beyond.
B
Finally, Ortiz raises an Appointments Clause challenge
to Judge Mitchell’s simultaneous service on the CCA and
the CMCR. That Clause provides that the President
“shall nominate, and by and with the Advice and Consent
24 ORTIZ v. UNITED STATES
Opinion of the Court
of the Senate, shall appoint” the “Officers of the United
States,” but that “Congress may by Law vest the Ap-
pointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the
Heads of Departments.” Art. II, §2, cl. 2. Litigants usually
invoke the Appointments Clause when they object to how
a government official is placed in his office. A litigant may
assert, for example, that because someone is a principal
rather than an inferior officer, he must be nominated by
the President and confirmed by the Senate. (Recall that
just such an argument about CMCR judges led to Judge
Mitchell’s presidential appointment. See supra, at 3.) But
Ortiz’s argument is not of that genre. He does not claim
that the process used to make Judge Mitchell either a
CCA judge or a CMCR judge violated the Appointments
Clause. Instead, he claims to find in that Clause a princi-
ple relating to dual service. A CCA judge, Ortiz notes, is
an inferior officer. See Edmond, 520 U. S., at 666. But a
CMCR judge, he says (though the Government has argued
otherwise), is a principal officer. And in Ortiz’s view, a
single judge cannot, consistent with the Appointments
Clause, serve as an inferior officer on one court and a
principal officer on another. He calls such dual office-
holding “incongru[ous]” and “functionally incompatible.”
Brief for Petitioners 50. The problem, he suggests, is that
the other (inferior officer) judges on the CCA will be “un-
duly influenced by” Judge Mitchell’s principal-officer
status on the CMCR. Id., at 51.
But that argument stretches too far. This Court has
never read the Appointments Clause to impose rules about
dual service, separate and distinct from methods of ap-
pointment. Nor has it ever recognized principles of “in-
congruity” or “incompatibility” to test the permissibility of
holding two offices. As Ortiz himself acknowledges, he can
“cite no authority holding that the Appointments Clause
prohibits this sort of simultaneous service.” Id., at 52.
Cite as: 585 U. S. ____ (2018) 25
Opinion of the Court
And if we were ever to apply the Clause to dual office-
holding, we would not start here. Ortiz tells no plausible
story about how Judge Mitchell’s service on the CMCR
would result in “undue influence” on his CCA colleagues.
The CMCR does not review the CCA’s decisions (or vice
versa); indeed, the two courts do not have any overlapping
jurisdiction. They are parts of separate judicial systems,
adjudicating different kinds of charges against different
kinds of defendants. See supra, at 1–3, and n. 1. We
cannot imagine that anyone on the CCA acceded to Judge
Mitchell’s views because he also sat on the CMCR—any
more than we can imagine a judge on an Article III Court
of Appeals yielding to a colleague because she did double
duty on the Foreign Intelligence Surveillance Court of
Review (another specialized court). The CAAF put the
point well: “When Colonel Mitchell sits as a CCA judge, he
is no different from any other CCA judge.” 76 M. J., at
193; see supra, at 5. So there is no violation of the Ap-
pointments Clause.
IV
This Court has appellate jurisdiction to review the
CAAF’s decisions. In exercising that jurisdiction, we hold
that Judge Mitchell’s simultaneous service on the CCA
and the CMCR violated neither §973(b)(2)(A)’s office-
holding ban nor the Constitution’s Appointments Clause.
We therefore affirm the judgment below.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1423
_________________
KEANU D. W. ORTIZ, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
[June 22, 2018]
JUSTICE THOMAS, concurring.
I join the Court’s opinion in full, which persuasively
explains why petitioner’s statutory and constitutional
arguments lack merit. I also agree that the statute giving
this Court appellate jurisdiction to review the decisions of
the Court of Appeals for the Armed Forces (CAAF), 28
U.S. C. §1259, complies with Article III of the Constitu-
tion. I write separately to explain why that conclusion is
consistent with the Founders’ understanding of judicial
power—specifically, the distinction they drew between
public and private rights.1
I
Article III vests “[t]he judicial Power of the United
States” in this Court and any inferior courts that Congress
chooses to establish. §1. The judicial power includes the
power to resolve the specific types of “Cases” and “Contro-
versies” listed in §2. Article III divides this Court’s juris-
diction over those cases into two categories: “original
Jurisdiction” and “appellate Jurisdiction.” This Court has
original jurisdiction in cases affecting ambassadors, other
public ministers, and consuls, and cases in which a State
is a party. This Court has appellate jurisdiction “[i]n all
——————
1 I express no view on any other arguments that were not raised by
the parties or amicus in this case, including any arguments based on
Article II of the Constitution.
2 ORTIZ v. UNITED STATES
THOMAS, J., concurring
the other Cases before mentioned” in §2. Because all
agree that the CAAF decides “other Cases” that are not
reserved for this Court’s original jurisdiction, we can
review its decisions only under our appellate jurisdiction.
The text of Article III imposes two important limits on
this Court’s appellate jurisdiction. First, as mentioned,
this Court can review only the “other Cases” that are
“before mentioned”—i.e., the subject matters of cases
listed in §2 that are not reserved for its original jurisdic-
tion. Second, this Court’s “appellate Jurisdiction” cannot
be “original.” As Chief Justice Marshall explained, “the
essential criterion of appellate jurisdiction” is that “it
revises and corrects the proceedings in a cause already
instituted, and does not create that cause.” Marbury v.
Madison, 1 Cranch 137, 175 (1803). Thus, this Court
cannot exercise appellate jurisdiction unless it is review-
ing an already completed exercise of “judicial power.” In
re Sanborn, 148 U.S. 222, 224 (1893); see also The Alicia,
7 Wall. 571, 573 (1869) (“An appellate jurisdiction neces-
sarily implies some judicial determination, some judg-
ment, decree, or order of an inferior tribunal, from which
an appeal has been taken”); 3 J. Story, Commentaries on
the Constitution of the United States §1755, p. 627 (1833)
(explaining that this Court can review only decisions “by
one clothed with judicial authority, and acting in a judicial
capacity”).
Other than these two limits, the text of Article III im-
poses no other self-executing constraints on this Court’s
appellate jurisdiction. Most notably, it does not require
appeals to come from any specific type of tribunal, such as
an Article III court. As Justice Story explained, “The
appellate power is not limited by the terms of the third
article to any particular courts. . . . It is the case, then, and
not the court, that gives the jurisdiction. If the judicial
power extends to the case, it will be in vain to search in
the letter of the constitution for any qualification as to the
Cite as: 585 U. S. ____ (2018) 3
THOMAS, J., concurring
tribunal.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 338
(1816). Hamilton made the same point years earlier: “The
Constitution in direct terms gives an appellate jurisdiction
to the Supreme Court in all the enumerated cases . . . ,
without a single expression to confine its operation to the
inferior federal courts. The objects of appeal, not the
tribunals from which it is to be made, are alone contem-
plated.” The Federalist No. 82, pp. 493–494 (C. Rossiter
ed. 1961); see also id., No. 81, at 489 (A. Hamilton) (reject-
ing a “technical interpretation” of the word “appellate” and
defining it to mean “nothing more than the power of one
tribunal to review the proceedings of another”). This
Court has relied on the lack of tribunal-specific limits in
Article III to exercise appellate jurisdiction over several
types of non-Article III courts, including state courts, see
Martin, supra, at 338, and territorial courts, see United
States v. Coe, 155 U.S. 76, 85–86 (1894); Wellness Int’l
Network, Ltd. v. Sharif, 575 U.S. ___–___, n. 2 (2015)
(THOMAS, J., dissenting) (slip op., at 7–8, n. 2) (discussing
American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546
(1828)). In short, this Court’s appellate jurisdiction re-
quires the exercise of a judicial power, not necessarily
“[t]he judicial Power of the United States” that Article III
vests exclusively in the federal courts, §1 (emphasis
added).
The Founders’ understanding of judicial power was
heavily influenced by the well-known distinction between
public and private rights. See Spokeo, Inc. v. Robins, 578
U.S. ___, ___–___ (2016) (THOMAS, J., concurring) (slip
op., at 1–2); Wellness, supra, at ___–___ (opinion of
THOMAS, J.) (slip op., at 6–11); Nelson, Adjudication in the
Political Branches, 107 Colum. L. Rev. 559, 565 (2007)
(Nelson). Public rights “ ‘belon[g] to the people at large,’ ”
while private rights belong to “ ‘each individual.’ ” Well-
ness, 575 U. S., at ___ (opinion of THOMAS, J.) (slip op.,
at 9). The three classic private rights—life, liberty, and
4 ORTIZ v. UNITED STATES
THOMAS, J., concurring
property—are “ ‘unalienable’ ” and “ ‘absolute,’ ” as they are
“not dependent upon the will of the government.” Ibid.
The Founders linked the disposition of private rights with
the exercise of judicial power. See id., at ___ (slip op., at
10). They considered “the power to act conclusively
against [private] rights [as] the core of the judicial power.”
Ibid.
A disposition of private rights did not amount to an
exercise of judicial power, however, unless it also satisfied
“some basic procedural requirements.” Nelson 574. Stated
differently, the disposition had to “assume such a form
that the judicial power is capable of acting on it.” Osborn
v. Bank of United States, 9 Wheat. 738, 819 (1824).
“[T]hat form generally required the presence (actual or
constructive) of adverse parties who had been given some
opportunity to be heard before the court rendered a final
judgment that bound them.” Nelson 574. Once a dispute
took this form, judicial power is exercised by “ ‘deter-
min[ing] all differences according to the established law.’ ”
Wellness, supra, at ___ (opinion of THOMAS, J.) (slip op., at
6) (quoting J. Locke, Second Treatise of Civil Government
§125, p. 63 (J. Gough ed. 1947)).
II
A
So understood, the CAAF exercises a judicial power. As
I explained in Wellness, military courts adjudicate core
private rights to life, liberty, and property. See 575 U. S.,
at ___–___ (dissenting opinion) (slip op., at 6–7). That
these courts adjudicate core private rights does not con-
tradict the Vesting Clause of Article III, which permits
only federal courts to exercise “the judicial Power of the
United States.” Like other provisions of the Constitution,
this language must be read against “commonly accepted
background understandings and interpretative principles
in place when the Constitution was written,” including the
Cite as: 585 U. S. ____ (2018) 5
THOMAS, J., concurring
principle that general constitutional rules could apply
“differently to civil than to military entities.” Mascott,
Who Are “Officers of the United States”? 70 Stan. L. Rev.
443, 480–483 (2018) (citing Nelson 576); see also Northern
Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S.
50, 64 (1982) (plurality opinion) (explaining that inter-
preting Article III to exclude military courts “simply
acknowledge[s] that the literal command of Art. III . . .
must be interpreted in light of . . . historical context . . .
and of the structural imperatives of the Constitution as a
whole”). Based on the “constellation of constitutional
provisions that [indicate] Congress has the power to pro-
vide for the adjudication of disputes among the Armed
Forces it creates,” our precedents have long construed the
Vesting Clause of Article III to extend “only to civilian
judicial power.” Wellness, 575 U. S., at ___ (opinion of
THOMAS, J.) (slip op., at 8) (citing Dynes v. Hoover, 20
How. 65, 78–79 (1858)). In other words, the powers that
the Constitution gives Congress over the military are “so
exceptional” that they are thought to include the power to
create courts that can exercise a judicial power outside the
confines of Article III. Northern Pipeline, supra, at 64.
Thus, military courts are better thought of as an “excep-
tion” or “carve-out” from the Vesting Clause of Article III,
rather than an entity that does not implicate the Vesting
Clause because it does not exercise judicial power in the
first place. See Wellness, supra, at ___–___ (opinion of
THOMAS, J.) (slip op., at 6–8).
No party in this case challenges the legitimacy of the
historical exception for military courts. And for good
reason: “At the time of the Framing, . . . it was already
common for nations to organize military tribunals that
stood apart from the ordinary civilian courts, and the
United States itself had done so.” Nelson 576. As the
Court explains, military courts predate the Constitution,
were well-known to the Founders, were authorized by the
6 ORTIZ v. UNITED STATES
THOMAS, J., concurring
First Congress, and are expressly contemplated by the
Fifth Amendment. Ante, at 9. The crucial point for pre-
sent purposes, however, is that military courts are consid-
ered exempt from the structural requirements of Article
III “because of other provisions of the Constitution, not
because of the definition of judicial power.” Wellness, 575
U. S., at ___ (opinion of THOMAS, J.) (slip op., at 8) (citing
Nelson 576). They plainly fall within that definition.
Military courts “have long been understood to exercise
‘judicial’ power” because they “act upon core private rights
to person and property.” Id., at 576. “[C]lothed with
judicial powers,” these courts decide “questions of the most
momentous description, affecting . . . even life itself.” W.
De Hart, Observations on Military Law 14 (1859); see also
11 Op. Atty. Gen. 19, 21 (1864) (explaining that military
courts are “judicial” because they “pass upon the most
sacred questions of human rights . . . which, in the very
nature of things, . . . must be adjudged according to law”).
Here, for example, the CAAF adjudicated the legality of
petitioner’s child-pornography convictions and his sen-
tence of two years confinement—a classic deprivation of
liberty, see Obergefell v. Hodges, 576 U.S. ___, ___–___
(2015) (THOMAS, J., dissenting) (slip op., at 4–6). “The
passing of judgment on the life and liberty of those con-
victed by the government in a military trial surely falls
within the judicial power.” Willis, The Constitution, the
United States Court of Military Appeals and the Future,
57 Mil. L. Rev. 27, 84 (1972). This Court has acknowl-
edged that military courts adjudicate core private rights,
as it has repeatedly held that the prosecution of non-
servicemembers in these courts would violate Article III.
See Northern Pipeline, supra, at 66, n. 17 (plurality opin-
ion); e.g., United States ex rel. Toth v. Quarles, 350 U.S.
11 (1955) (former servicemembers); Reid v. Covert, 354
Cite as: 585 U. S. ____ (2018) 7
THOMAS, J., concurring
U. S. 1 (1957) (spouses of servicemembers).2
In addition to adjudicating private rights, the CAAF’s
cases “assume such a form that the judicial power is capa-
ble of acting on [them].” Osborn, 9 Wheat., at 819. The
CAAF adjudicates cases involving “adverse parties who
ha[ve] been given some opportunity to be heard.” Nelson
574. It has independent authority to “prescribe” its own
“rules of procedure,” 10 U.S. C. §944, which provide for
briefing, oral argument, and other procedures that mirror
a federal court of appeals. See generally CAAF Rules of
Practice and Proc. (2017). The CAAF also decides cases
“ ‘according to the established law.’ ” Wellness, 575 U. S.,
at ___ (opinion of THOMAS, J.) (slip op., at 6). It can act
“only with respect to matters of law,” §867(c), and its
civilian judges decide cases by independently interpreting
the Constitution, the Uniform Code of Military Justice,
and other federal laws. Lastly, the CAAF renders “final
judgment[s] that b[ind] [the parties].” Nelson 574. Its
judgments are “final and conclusive” as soon as they are
published and are “binding upon all departments, courts,
agencies, and officers of the United States.” §876. The
Executive Branch has no statutory authority to review or
modify the CAAF’s decisions.3 In short, when it comes to
——————
2 Servicemembers consent to military jurisdiction when they enlist.
While this consent might allow military courts to adjudicate a service-
member’s private rights, it does not transform the nature of the power
that the military courts exercise, or somehow transform the service-
member’s private right to life, liberty, or property into a public right.
See Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. ___, ___, ___ (2015)
(THOMAS, J., dissenting) (slip op., at 6, 14).
3 Unlike the CAAF’s decisions, court-martial proceedings are not final
until they are approved by the convening authority. See 10 U.S. C.
§876. But the CAAF does not review court-martial proceedings until
after they have been approved and have been reviewed by an interme-
diate Court of Criminal Appeals. See §867(c). Because “the [CAAF]
reviews court-martial convictions after executive branch review ends,”
the “[r]eview of its decisions in the Supreme Court of the United States,
8 ORTIZ v. UNITED STATES
THOMAS, J., concurring
the CAAF, “ ‘[t]he whole proceeding from its inception is
judicial.’ ” Runkle v. United States, 122 U.S. 543, 558
(1887) (quoting 11 Op. Atty. Gen., at 21).4
B
Professor Bamzai contends that the CAAF exercises an
executive, not a judicial, power. He notes that this Court
has described the CAAF as an “Executive Branch entity,”
Edmond v. United States, 520 U.S. 651, 664 (1997), and
he cites commentators who describe military courts as
“instrumentalities of the executive power” because they
help the President maintain discipline over the Armed
Forces, W. Winthrop, Military Law and Precedents 49 (2d
ed. 1920); G. Davis, Military Law of the United States 15
(2d ed. 1909). Professor Bamzai also compares the CAAF
to administrative agencies, which he contends exercise
executive power. If agencies exercised core judicial power,
he notes, they would be acting unconstitutionally because
——————
by certiorari, . . . poses no finality problems” under Article III. Pfander,
Article I Tribunals, Article III Courts, and the Judicial Power of the
United States, 118 Harv. L. Rev. 643, 717, n. 327 (2004).
4 Most of the statutes cited above are unique to the CAAF—the court
whose decision we are reviewing and, thus, the only one that matters
for purposes of our appellate jurisdiction. I express no view on whether
this Court could directly review the CAAF, absent these statutes. And
I express no view on whether this Court could directly review the
decisions of other military courts, such as courts-martial or military
commissions. Cf. id., at 723, n. 358 (suggesting that this Court could
not directly review courts-martial and military commissions because
their proceedings are “summary” and “create no record to support writ
of error review”); Choper & Yoo, Wartime Process: A Dialogue on
Congressional Power to Remove Issues from the Federal Courts, 95 Cal.
L. Rev. 1243, 1283 (2007) (suggesting that the adjudication of the rights
of enemy aliens by law-of-war military commissions might be better
understood as exercising the President’s power to conduct war, not
judicial power). And, of course, this Court’s appellate jurisdiction does
not allow it to directly review decisions of the Executive Branch that do
not “assume such a form that the judicial power is capable of acting on
[them].” Osborn v. Bank of United States, 9 Wheat. 738, 819 (1824).
Cite as: 585 U. S. ____ (2018) 9
THOMAS, J., concurring
they do not enjoy the structural protections of Article III.
See Arlington v. FCC, 569 U.S. 290, 304, n. 4 (2013).
These arguments miss the mark. While the CAAF is in
the Executive Branch and its purpose is to help the Presi-
dent maintain troop discipline, those facts do not change
the nature of the power that it exercises. See Brigadier
General S. T. Ansell’s Brief Filed in Support of His Office
Opinion (Dec. 11, 1917), reprinted in Hearings on S. 64
before the Subcommittee of the Senate Committee on
Military Affairs, 66th Cong., 1st Sess., 71, 76 (1919). And
it is the nature of the power, not the branch exercising it,
that controls our appellate jurisdiction:
“The controlling question is whether the function to be
exercised . . . is a judicial function . . . . We must not
‘be misled by a name, but look to the substance and
intent of the proceeding.’ United States v. Ritchie, 17
How. 525, 534 [(1855)]. ‘It is not important . . .
whether such a proceeding was originally begun by an
administrative or executive determination, if when it
comes to the court, whether legislative or constitu-
tional, it calls for the exercise of only the judicial
power.’ ” Federal Radio Comm’n v. Nelson Brothers
Bond & Mortgage Co. (Station WIBO), 289 U.S. 266,
277–278 (1933) (some citations omitted).
As explained, the CAAF exercises a judicial power because
it adjudicates private rights. That the Constitution per-
mits this Executive Branch entity to exercise a particular
judicial power—due to the political branches’ expansive
constitutional powers over the military—does not change
the analysis.
Professor Bamzai’s analogy to administrative agencies is
flawed. Professor Bamzai assumes that, when adminis-
trative agencies adjudicate private rights, they are not
exercising judicial power. But they are. See B&B Hard-
ware, Inc. v. Hargis Industries, Inc., 575 U.S. ___, ___–___
10 ORTIZ v. UNITED STATES
THOMAS, J., concurring
(2015) (THOMAS, J., dissenting) (slip op., at 11–12). In
fact, they are unconstitutionally exercising “[t]he judicial
Power of the United States,” as agencies are not Article III
courts and do not “enjoy a unique, textually based” carve-
out from the Vesting Clause of Article III. Wellness, 575
U. S., at ___ (opinion of THOMAS, J.) (slip op., at 14). The
CAAF does enjoy such a carveout, as I explained in Well-
ness. But both it and administrative agencies exercise a
judicial power when they adjudicate private rights. Con-
trary to the premise underlying Professor Bamzai’s argu-
ment, questions implicating the separation of powers
cannot be answered by arguing, in circular fashion, that
whatever the Executive Branch does is necessarily an
exercise of executive power.
* * *
Because the CAAF exercises a judicial power, the stat-
ute giving this Court appellate jurisdiction over its deci-
sions does not violate Article III. For these reasons, and
the reasons given by the Court, I concur.
Cite as: 585 U. S. ____ (2018) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1423
_________________
KEANU D. W. ORTIZ, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
[June 22, 2018]
JUSTICE ALITO, with whom JUSTICE GORSUCH joins,
dissenting.
I begin with a story that is familiar to students of con-
stitutional law. After his Federalist Party was defeated in
the pivotal election of 1800, outgoing President John
Adams attempted to fill the Federal Judiciary with indi-
viduals favored by his party. The Senate confirmed Ad-
ams’s nominees, and Adams diligently signed their com-
missions and sent them to the Secretary of State, one John
Marshall, so that the Great Seal could be affixed and the
commissions could be delivered. Most of the commissions
were promptly sealed and dispatched, but a few were left
behind, including the commission of William Marbury,
who had been nominated and confirmed as a justice of the
peace for the District of Columbia.
After Thomas Jefferson was sworn in as the Nation’s
third President, he was furious about Adams’s eleventh-
hour judicial appointments,1 and his Secretary of State,
James Madison, made a fateful decision. Evaluating the
facts and the law as he saw them, Madison concluded that
he was under no legal obligation to deliver the commis-
sions that had been left in Marshall’s office, and he decided
not to do so.
——————
1 Letter from Thomas Jefferson to Henry Knox (Mar. 27, 1801), in 33
Papers of Thomas Jefferson 465, 466 (B. Oberg ed. 2006.).
2 ORTIZ v. UNITED STATES
ALITO, J., dissenting
Outraged, Marbury filed suit directly in our Court,
asking that Madison be ordered to deliver his commission.
But we dismissed his case, holding, among other things,
that it did not fall within our “appellate jurisdiction.”
Marbury v. Madison, 1 Cranch 137, 175–176, 180 (1803).
Why? Because “appellate jurisdiction” means jurisdiction
to review “the proceedings in a cause [i.e., a case] already
instituted” in another court. Id., at 175. Madison was an
Executive Branch officer, not a court, and therefore Mar-
bury’s dispute with Madison did not become a “cause” or
case until it was brought before this Court. As a result,
review of Madison’s decision did not fall within our “appel-
late” jurisdiction. Id., at 175–176.
That conclusion was straightforward enough. But sup-
pose that Madison’s decisionmaking process had been
more formal. Suppose that he had heard argument about
his legal obligations—and perhaps even testimony about
Marbury’s qualifications. (After all, President Jefferson
reappointed some of Adams’s nominees, but not Mar-
bury.2) Or suppose Madison had convened an Executive
Branch committee to make an initial determination.
Suppose that this entity was labeled the “Court of Com-
mission Review.” Suppose that the members wore robes
and were called judges, held their meeting in a court-
house, and adopted court-like procedures. With all these
adornments, would Madison’s decision have fallen within
our appellate jurisdiction? Would Marbury v. Madison
have come out the other way?
The answer is no, and the reason is the same as before.
Our appellate jurisdiction permits us to review one thing:
the lawful exercise of judicial power. Lower federal courts
exercise the judicial power of the United States. State
courts exercise the judicial power of sovereign state gov-
——————
2 Prakash, The Appointment and Removal of William J. Marbury and
When an Office Vests, 89 Notre Dame L. Rev. 199, 209 (2013).
Cite as: 585 U. S. ____ (2018) 3
ALITO, J., dissenting
ernments. Even territorial courts, we have held, exercise
the judicial power of the territorial governments set up by
Congress. Executive Branch officers, on the other hand,
cannot lawfully exercise the judicial power of any sover-
eign, no matter how court-like their decisionmaking pro-
cess might appear. That means their decisions cannot be
appealed directly to our Court.
We have followed this rule for more than two centuries.
It squarely resolves this case. Courts-martial are older
than the Republic and have always been understood to be
Executive Branch entities that help the President, as
Commander in Chief, to discipline the Armed Forces. As
currently constituted, military tribunals do not comply
with Article III, and thus they cannot exercise the Federal
Government’s judicial power. That fact compels us to
dismiss Ortiz’s petition for lack of jurisdiction.
Today’s decision is unprecedented, and it flatly violates
the unambiguous text of the Constitution. Although the
arguments in the various opinions issued today may seem
complex, the ultimate issue is really quite simple. The
Court and the concurrence say that Congress may confer
part of the judicial power of the United States on an entity
that is indisputably part of the Executive Branch. But
Article III of the Constitution vests “[t]he Judicial Power
of the United States”—every single drop of it—in “one
supreme Court, and in such inferior Courts as the Con-
gress may from time to time ordain and establish” in
compliance with that Article. A decision more contrary to
the plain words of the Constitution is not easy to recall.
I
Under Article III of the Constitution, the judicial power
of the United States may be vested only in tribunals
whose judges have life tenure and salary protection. §1.
“There is no exception to this rule in the Constitution.”
Benner v. Porter, 9 How. 235, 244 (1850); Oil States Energy
4 ORTIZ v. UNITED STATES
ALITO, J., dissenting
Services, LLC v. Greene’s Energy Group, LLC, 584 U.S.
___, ___ (2018) (slip op., at 5–6); Stern v. Marshall, 564
U.S. 462, 503 (2011); Martin v. Hunter’s Lessee, 1 Wheat.
304, 330–331 (1816) (Story, J.).
The Court of Appeals for the Armed Forces (CAAF) is
not such a tribunal. Its judges serve 15-year terms and
can be removed by the President for cause. 10 U.S. C.
§§942(b), (c). As the majority acknowledges, the CAAF is
an Executive Branch entity, and as such, it cannot be
vested with the judicial power conferred by Article III.
If the CAAF were to do something that either amounts to
or requires the exercise of judicial power, it would be
unconstitutional.
After specifying the only institutions that may exercise
the judicial power of the United States, Article III defines
the permissible scope of the jurisdiction of this Court.
Article III allows us to exercise both “original” and “appel-
late” jurisdiction. Our original jurisdiction is limited to
“Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party,” §2, so
it is obvious that Ortiz’s case does not fall within our
original jurisdiction. But what about our appellate juris-
diction? If we directly reviewed a decision of the CAAF,
would that be an exercise of “appellate” review in the
sense meant by Article III? The answer is no.
A
The understanding of appellate jurisdiction embodied in
Article III has deep roots. Blackstone explained that a
“court of appeal” has jurisdiction only to “reverse or affirm
the judgment of the inferior courts.” 3 W. Blackstone,
Commentaries on the Laws of England 411 (1768) (Black-
stone) (emphasis added). Echoing Blackstone, we have
held that our appellate jurisdiction permits us to act only
as “[a] supervising Court, whose peculiar province it is to
correct the errors of an inferior Court.” Cohens v. Vir-
Cite as: 585 U. S. ____ (2018) 5
ALITO, J., dissenting
ginia, 6 Wheat. 264, 396 (1821) (Marshall, C. J.). And we
have reiterated that “[a]n appellate jurisdiction necessarily
implies some judicial determination, some judgment,
decree, or order of an inferior tribunal, from which an
appeal has been taken.” The Alicia, 7 Wall. 571, 573
(1869); Webster v. Cooper, 10 How. 54, 55 (1850); 3 J.
Story, Commentaries on the Constitution of the United
States §916, p. 652 (1833) (Story).
Those principles make it easy to understand what Mar-
bury meant when it held that “[i]t is the essential criterion
of appellate jurisdiction, that it revises and corrects the
proceedings in a cause already instituted, and does not
create that cause.” 1 Cranch, at 175. The cause (or case)
must have been created previously, somewhere else. And
as Blackstone suggested, what “creates” a “case” in the
relevant sense—that is, what transforms a dispute into a
“case” that an appellate court has jurisdiction to resolve—
is the prior submission of the dispute to a tribunal that is
lawfully vested with judicial power.
We held exactly that not long after Marbury, and in a
decision no less seminal. A dispute “becomes a case” for
purposes of Article III, we held, only when it “assume[s]
such a form that the judicial power is capable of acting on
it. That power is capable of acting only when the subject
is submitted to it by a party who asserts his rights in the
form prescribed by law. It then becomes a case.” Osborn
v. Bank of United States, 9 Wheat. 738, 819 (1824) (Mar-
shall, C. J.) (emphasis added). Hence, in order to create a
“case” that Article III permits us to review on appeal, a
litigant must have first “submitted” the dispute to another
tribunal that was “capable” of exercising the “judicial
power” of the government to which the tribunal belongs.
As discussed, Executive Branch tribunals cannot fill that
essential role.
We reiterated this principle in Cohens, another founda-
tional precedent of the Marshall Court. “To commence a
6 ORTIZ v. UNITED STATES
ALITO, J., dissenting
suit,” Chief Justice Marshall explained, “is to demand
something by the institution of process in a Court of jus-
tice.” 6 Wheat., at 408 (emphasis added). Courts of justice
are those tribunals “erected by” the sovereign and properly
vested with the sovereign’s own “power of judicature.” 1
Blackstone 257 (1765). When the sovereign is the Federal
Government, that means only courts established under
Article III, for only those courts may exercise the judicial
power of the United States. See Cohens, supra, at 405;
The Federalist No. 78, pp. 469–472 (C. Rossiter ed. 1961)
(“the courts of justice” are those described in Article III).
This view of appellate jurisdiction explains why, in
Martin v. Hunter’s Lessee, Justice Story declared that “if
. . . congress should not establish [inferior Article III]
courts, the appellate jurisdiction of the supreme court
would have nothing to act upon, unless it could act upon
cases pending in the state courts.” 1 Wheat., at 339–340.
Without decisions of Article III courts or state courts to
review, our appellate jurisdiction would have lain idle—
but not because there were no Executive Branch tribunals,
like the CAAF, deciding federal questions. To the contrary,
executive agencies have “conduct[ed] adjudications”—often
taking “ ‘judicial’ forms”—“since the beginning of the Re-
public.” Arlington v. FCC, 569 U.S. 290, 304–305, n. 4
(2013); Freytag v. Commissioner, 501 U.S. 868, 910 (1991)
(Scalia, J., concurring in part and concurring in judg-
ment); see generally J. Mashaw, Creating the Administra-
tive Constitution 34–35 (2012).
Such Executive Branch adjudications, however, do not
give rise to “cases” that Article III grants us appellate
jurisdiction to review, precisely because officers of the
Executive Branch cannot lawfully be vested with judicial
power. That is why Chief Justice Marshall declared,
without qualification, that “[a] mandamus to an officer [of
the Executive Branch] is held to be the exercise of original
jurisdiction; but a mandamus to an inferior court of the
Cite as: 585 U. S. ____ (2018) 7
ALITO, J., dissenting
United States, is in the nature of appellate jurisdiction.”
Ex parte Crane, 5 Pet. 190, 193 (1831) (emphasis added).
Time has not sown doubts about the truth of that rule.
E.g., Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535
U.S. 635, 644, n. 3 (2002) (“judicial review of executive
action, including determinations made by a state adminis-
trative agency,” involves the exercise of federal court’s
“original jurisdiction” rather than its “appellate jurisdic-
tion,” which covers only “state-court judgments”); L. Jaffe,
Judicial Control of Administrative Action 263, n. 5 (1965).
We have taken this same approach when deciding
whether we may assert appellate jurisdiction to review the
decision of a state tribunal: We look to state law to see
whether the tribunal in question was eligible to receive
the State’s judicial power. E.g., Betts v. Brady, 316 U.S.
455, 458–460 (1942); cf. Chicago, R. I. & P. R. Co. v. Stude,
346 U.S. 574, 578–579 (1954) (federal courts cannot exer-
cise removal jurisdiction—which is appellate in nature,
Martin, supra, at 349—while a dispute is still in state
“administrative” proceedings; removal is proper only after
“the jurisdiction of the state district court is invoked”);
Verizon Md., supra.
B
This understanding of appellate jurisdiction bars our
review here. The dispute between Ortiz and the Federal
Government has been presented to four tribunals: the
initial court-martial, the Air Force Court of Criminal
Appeals, the CAAF, and this Court. Each of those tribu-
nals belongs to a branch of the Federal Government. Yet
only one of them—our Court—is capable, under the Con-
stitution, of exercising the Government’s judicial power.
Thus, the dispute between Ortiz and the Federal Govern-
ment did not become an Article III “case” until Ortiz peti-
tioned our Court to hear it. That means our present adju-
dication—no less than our adjudication of the dispute
8 ORTIZ v. UNITED STATES
ALITO, J., dissenting
between Marbury and Madison—lacks “the essential
criterion of appellate jurisdiction.” 1 Cranch, at 175.
The majority does not question this framework; indeed,
it acknowledges that, per Marbury, we can assert jurisdic-
tion here only if the dispute before us blossomed into an
Article III “case” before it landed at our doorstep. Ante, at
6–7. Curiously, however, the majority basically proceeds
as though Marbury were our last word on the subject.
Ante, at 6–8. That is simply not right. As discussed, our
foundational precedents expressly delineate the prerequi-
sites to the formation of a constitutional case: The dispute
must, at a minimum, have been previously presented to
and decided by a tribunal lawfully vested with the judicial
power of the government to which it belongs. Nothing of
the sort occurred here; traversing a series of “proceedings”
internal to the Executive Branch, ante, at 7, does not
count. And while there undoubtedly are differences be-
tween this case and Marbury, even some that “lea[p] off
the page,” ante, at 18, those distinctions are irrelevant to
our jurisdiction. The dispositive common ground is that,
just as in Marbury, we are here asked to resolve a dispute
that has been presented only to Executive Branch officers.
The present dispute thus lies beyond the “peculiar prov-
ince” of our appellate jurisdiction to review. Cohens, 6
Wheat., at 396.
C
If there were any doubt that Article III forbids us to
take appeals directly from the Executive Branch, two
centuries of precedent—almost all of it overlooked by the
majority—would put those doubts to rest.
1
First consider the history of our relationship with the
Court of Claims. Congress established that court in 1855
to adjudicate claims against the United States. §1, 10
Cite as: 585 U. S. ____ (2018) 9
ALITO, J., dissenting
Stat. 612. Congress provided the court’s judges with life
tenure and salary protection, just as Article III requires.
Ibid. The Court of Claims was a court of record, and it
followed all the procedures—and possessed all the ancil-
lary powers (subpoena, contempt, etc.)—that one would
expect to find in a court of justice. §§3–7, 10 Stat. 613; §4,
12 Stat. 765–766. Its decisions had preclusive effect, and
were appealable directly to our Court. §§7, 5, id., at 766.
If the court rendered judgment for a claimant, however,
the Secretary of the Treasury could partially revise its
decision by modifying the amount of the judgment to be
paid (though not the court’s legal conclusion that the
claimant was in the right). §14, id., at 768.
Under principles as old as Hayburn’s Case, 2 Dall. 409
(1792), a court whose judgments are not self-executing no
more complies with Article III than a tribunal whose
judges are not life tenured. For that reason alone, we
dismissed for lack of jurisdiction the first time a party
appealed a Court of Claims decision directly to our Court.
Gordon v. United States, 2 Wall. 561 (1865), 117 U. S.
Appx. 697 (1864). It did not even matter that the court’s
decision in that case had been against the claimant, and
was thus immune from revision, and would have been
fully binding if we had affirmed. All that mattered was
that the Court of Claims, like the CAAF, lacked an attrib-
ute that Article III makes prerequisite to the vesting of
judicial power. Id., at 704. In words that apply as much
here, we said that “the so-called judgments of the Court of
Claims . . . could not be deemed an exercise of judicial
power, and could not, therefore, be revised by this court.”
In re Sanborn, 148 U.S. 222, 224 (1893). It was irrelevant
how much the Court of Claims otherwise “resemble[d] . . .
courts whose decisions we review.” Ante, at 9.
The story does not end there, however. In 1866 Con-
gress did something it has never done with respect to
courts-martial: It brought the Court of Claims into com-
10 ORTIZ v. UNITED STATES
ALITO, J., dissenting
pliance with Article III by repealing the provision that
made some of its decisions revisable by the Treasury
Secretary. Ch. 19, §1, 14 Stat. 9. We began hearing ap-
peals from it “immediately.” United States v. Jones, 119
U.S. 477, 478 (1886). We now were able to “accep[t] ap-
pellate jurisdiction over what was, necessarily, an exercise
of the judicial power which alone [we] may review.” Glid-
den Co. v. Zdanok, 370 U.S. 530, 554 (1962) (plurality
opinion) (citing Marbury, supra, at 174–175; emphasis
added).
2
Next consider our practice in entertaining petitions for
writs of habeas corpus.
Four years after Marbury, we reaffirmed its core holding
in Ex parte Bollman, 4 Cranch 75 (1807) (Marshall, C. J.).
Two men were taken into federal custody, and their con-
finement was approved by an Article III court. United
States v. Bollman, 24 F. Cas. 1189, 1190, 1196 (No.
14,622) (CC DC 1807). They then petitioned our Court for
a writ of habeas corpus. Applying Marbury, we held that
the jurisdiction “which the court is now asked to exercise
is clearly appellate. It is the revision of a decision of an
inferior court.” 4 Cranch, at 101.
Contrast Bollman with Ex parte Barry, 2 How. 65 (1844)
(Story, J.), and In re Metzger, 5 How. 176 (1847). In Barry,
the petitioner sought relief in this Court without first
presenting his claim to an inferior federal court or a state
court, and so Justice Story explained that “[t]he case,
then, is one avowedly and nakedly for the exercise of
original jurisdiction by this court,” and was required to be
dismissed. 2 How., at 65. In Metzger, “the district judge”
had “heard and decided” the lawfulness of the petitioner’s
custody, but the judge had done so only “at his chambers,
and not in court.” 5 How., at 191 (emphasis added). His
judgment was not provisional, like some early Court of
Cite as: 585 U. S. ____ (2018) 11
ALITO, J., dissenting
Claims decisions—but his status as a judge at chambers
was still fatal to our jurisdiction. In a technical sense, a
judge at chambers “exercises a special authority” distinct
from the judicial power vested by Article III—which meant
that the Constitution would permit us to review his deci-
sion in “[t]he exercise of an original jurisdiction only.” Id.,
at 191–192.
3
Finally, and especially pertinent here, we have adhered
to the Marbury principle in the many instances in our
Court’s history in which we have been asked to review the
decision of a military tribunal. First, in Ex parte Vallan-
digham, 1 Wall. 243 (1864), an Ohio resident had been
tried and sentenced by a military commission, and its
decision became final after being approved up the chain of
command. Vallandigham sought relief directly from our
Court, without first petitioning a lower federal court. We
held that we lacked jurisdiction. Id., at 254. The military
commission, like the CAAF, was not one of the “courts of
the United States” established under Article III, id., at
251, and thus it could not exercise the judicial power of the
Federal Government, but could exercise only “a special
authority,” id., at 253—just like the Court of Claims, and
just like a judge at chambers. Given that fact, we held it
was “certain” that any review of its decisions could take
place only in the exercise of our original, and not appel-
late, jurisdiction. Id., at 251–252. And despite what the
majority seems to think, see ante, at 17, n. 8, in Vallan-
digham we recognized that the military tribunal had
“judicial character” in the sense that it had “the authority
. . . to examine, to decide and sentence,” but—in the same
breath—we affirmed the crucial point, namely, that such
character “ ‘is not judicial . . . in the sense in which judicial
power is granted to the courts of the United States.’ ” 1
Wall., at 253 (emphasis added).
12 ORTIZ v. UNITED STATES
ALITO, J., dissenting
Contrast Vallandigham with a pair of decisions we
issued shortly thereafter. In Ex parte Milligan, 4 Wall. 2(1866), and Ex parte Yerger, 8 Wall. 85 (1869), we again
were asked to grant relief to petitioners who, just like
Vallandigham (and just like Ortiz), were in custody under
orders of a non-Article III military tribunal. But unlike
Vallandigham and Ortiz, Milligan and Yerger first sought
relief in a lower federal court. Milligan, supra, at 107–
108; Yerger, 8 Wall., at 102–103. That fact made all the
difference—again, because of the rule that we possess,
“under the Constitution, an appellate jurisdiction, to be
exercised only in the revision of judicial decisions.” Id., at
97. The decisions of non-Article III military courts do not
qualify.
Similarly, after World War II we received “more than a
hundred” habeas petitions from individuals in the custody
of “various American or international military tribunals
abroad,” almost none of whom had “first sought [relief ] in
a lower federal court.” R. Fallon, J. Manning, D. Meltzer,
& D. Shapiro, Hart and Wechsler’s The Federal Courts
and the Federal System 292 (7th ed. 2015). Consistent
with Marbury, we denied review in every one. Fallon,
supra, at 292–293. Thus, while it is surely true that “not
every military tribunal is alike” in all respects, ante, at 17,
before today, they were at least alike in this respect: Their
decisions could not be reviewed directly here.
D
The unbroken line of authorities discussed above vividly
illustrates the nature and limits of our appellate jurisdic-
tion as defined in Article III. Today’s decision cannot be
squared with those authorities, and the majority barely
even tries. The majority says not a word about the Court
of Claims, even though that tribunal surely had sufficient
“court-likeness,” ante, at 16 (emphasis deleted), to come
within the scope of our appellate jurisdiction under today’s
Cite as: 585 U. S. ____ (2018) 13
ALITO, J., dissenting
test. Nor does the majority acknowledge the slew of on-
point habeas decisions—save for Vallandigham, which it
waves away by emphasizing irrelevant factual details (like
the commanding officer’s facial hair). Despite its running
refrain that the CAAF displays a “judicial character,” ante,
at 6 (emphasis added); see also ante, at 8, 18, 19, the
majority simply never comes to grips with the substance of
our holdings: We may not hear an appeal directly from
any tribunal that has not been lawfully vested with judi-
cial power. That rule directly covers the CAAF, and it
bars our review.
II
Having said very little about a large body of controlling
precedent, the majority says very much about the fact that
we have long heard appeals directly from territorial courts
and the courts of the District of Columbia. Ante, at 12–16.
The majority claims to be looking for a “powerful reason”
why our appellate jurisdiction should treat courts-martial
any differently. Ante, at 15. A careful reading of our
decisions shows that we have a good reason ready at
hand—one that is fully consistent with Marbury.
The reason, as I explain below, is this: Congress enjoys a
unique authority to create governments for the Territories
and the District of Columbia and to confer on the various
branches of those governments powers that are distinct
from the legislative, executive, and judicial power of the
United States. Thus, for example, the courts of the Dis-
trict of Columbia exercise the judicial power of the Dis-
trict, not that of the United States. The courts of the
United States Virgin Islands exercise the judicial power of
that Territory, not the judicial power of the United States.
By contrast, the CAAF and other military tribunals are
indisputably part of the Executive Branch of the Govern-
ment of the United States. They exercise the power of the
United States, not that of any other government, and since
14 ORTIZ v. UNITED STATES
ALITO, J., dissenting
they are part of the Executive, the only power that they
may lawfully exercise is executive, not judicial. Unless
they are removed from the Executive Branch and trans-
formed into Article III courts, they may not exercise any
part of the judicial power of the United States. Nor need
they exercise judicial power to carry out their functions, as
we have always understood.
A
We have long said that Congress’s authority to govern
the Territories and the District of Columbia stems as
much from its inherent sovereign powers as it does from
specific constitutional provisions in Articles IV and I. Sere
v. Pitot, 6 Cranch 332, 336–337 (1810) (Marshall, C. J.);
American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546
(1828) (Marshall, C. J.); Late Corp. of Church of Jesus
Christ of Latter-day Saints v. United States, 136 U.S. 1,
42 (1890); see also Art. IV, §3, cl. 2 (Territories); Art. I, §8,
cl. 17 (District). Perhaps reflecting that view, the found-
ing generation understood—and for more than two centu-
ries, we have recognized—that Congress’s power to govern
the Territories and the District is sui generis in one very
specific respect: When exercising it, Congress is not bound
by the Vesting Clauses of Articles I, II, and III.
The Vesting Clauses impose strict limits on the kinds of
institutions that Congress can vest with legislative, execu-
tive, and judicial power. See generally Department of
Transportation v. Association of American Railroads, 575
U.S. ___, ___–___ (2015) (THOMAS, J., concurring in judg-
ment) (slip op., at 2–3). Those limits apply when Congress
legislates in every other area, including when it regulates
the Armed Forces. See Loving v. United States, 517 U.S.
748, 767–768, 771–774 (1996) (Article I nondelegation
doctrine applies to congressional regulation of courts-
martial). But it has been our consistent view that those
same limits do not apply when Congress creates institu-
Cite as: 585 U. S. ____ (2018) 15
ALITO, J., dissenting
tions to govern the Territories and the District. As we
said in Benner v. Porter, 9 How. 235, 242 (1850), territorial
governments set up by Congress “are not organized under
the Constitution, nor subject to its complex distribution of
the powers of government, as the organic law; but are the
creations, exclusively, of the legislative department.”
Congress may therefore give territorial governments “a
legislative, an executive, and a judiciary, with such powers
as it has been their will to assign to those departments.”
Sere, supra, at 337. That is why we have often repeated
that “[i]n legislating for [the Territories], Congress exer-
cises the combined powers of the general, and of a state
government.” American Ins. Co., supra, at 546; Palmore v.
United States, 411 U.S. 389, 403 (1973). Just as the
Vesting Clauses do not constrain the States in organizing
their own governments, Dreyer v. Illinois, 187 U.S. 71, 84
(1902), those Clauses do not constrain Congress in organ-
izing territorial governments.
Thus, unlike any of its other powers, Congress’s power
over the Territories allows it to create governments in
miniature, and to vest those governments with the legisla-
tive, executive, and judicial powers, not of the United
States, but of the Territory itself. For that reason we have
upheld delegations of legislative, executive, and judicial
power to territorial governments despite acknowledging
that each one would be incompatible with the Vesting
Clauses of the Federal Constitution if those Clauses ap-
plied. See, e.g., Dorr v. United States, 195 U.S. 138, 153
(1904) (territorial legislature); Cincinnati Soap Co. v.
United States, 301 U.S. 308, 322–323 (1937); Snow v.
United States, 18 Wall. 317, 321–322 (1873) (territorial
executive); American Ins. Co., supra (territorial courts);
Sere, supra; Kendall v. United States ex rel. Stokes, 12 Pet.
524, 619 (1838); Keller v. Potomac Elec. Power Co., 261
U.S. 428, 442–443 (1923).
The Framers evidently shared this view. Thus, James
16 ORTIZ v. UNITED STATES
ALITO, J., dissenting
Madison took it for granted that Congress could create “a
municipal legislature” for the District of Columbia, The
Federalist No. 43, at 272–273, something that would
otherwise violate the Vesting Clause of Article I, which
prohibits Congress from delegating legislative powers to
any other entity, Wayman v. Southard, 10 Wheat. 1, 42–
43 (1825) (Marshall, C. J.). And Justice Story declared,
without hesitation, that “[w]hat shall be the form of gov-
ernment established in the territories depends exclusively
upon the discretion of congress. Having a right to erect a
territorial government, they may confer on it such powers,
legislative, judicial, and executive, as they may deem
best.” 3 Story §667, at 478.
The upshot is that it is only when Congress legislates for
the Territories and the District that it may lawfully vest
judicial power in tribunals that do not conform to Article
III. And that, in turn, explains why territorial courts and
those of the District—exercising the judicial power of their
respective governments—may have their decisions ap-
pealed directly here. We said as much in United States v.
Coe, 155 U.S. 76, 86 (1894), where we explained that
because Congress’s “power of government . . . over the
Territories . . . includes the ultimate executive, legislative,
and judicial power, it follows that the judicial action of all
inferior courts established by Congress may, in accordance
with the Constitution, be subjected to [our] appellate
jurisdiction.”
The rule of appellate jurisdiction we recognized in Coe is
identical to the rule we have applied ever since Marbury:
Our appellate jurisdiction is proper only if the underlying
decision represents an exercise of judicial power lawfully
vested in the tribunal below. Territorial courts and those
of the District of Columbia have such power; the CAAF
does not, and cannot be given it so long as it fails to com-
ply with Article III. That is reason enough to treat these
Cite as: 585 U. S. ____ (2018) 17
ALITO, J., dissenting
tribunals differently.3
B
The majority responds to this conclusion by suggesting,
albeit without much elaboration, that just as the Constitu-
tion gives Congress the “exceptional” power to confer non-
Article III judicial power on the courts of the Territories
and the District of Columbia, the Constitution also gives
Congress the “exceptional” power to vest military tribu-
nals with non-Article III judicial power. See ante, at 15,
and n. 7. But the Vesting Clauses are exclusive, which
means that the Government’s judicial power is not shared
between Article II and Article III. See supra, at 3–4 (col-
lecting cases); see also, e.g., Arlington, 569 U. S., at 304–
305, n. 4; Ex parte Randolph, 20 F. Cas. 242, 254 (No.
11,558) (CC Va. 1833) (Marshall, C. J.) (those whose “offices
are held at the pleasure of the president . . . are, conse-
quently, incapable of exercising any portion of the judicial
power”); Association of American Railroads, 575 U. S., at
___, ___ (THOMAS, J., concurring in judgment) (slip op., at
2, 9); B&B Hardware, Inc. v. Hargis Industries, Inc., 575
——————
3 It is true that our decisions concerning territorial governments, and
territorial courts in particular, have had their share of critics. See, e.g.,
M. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial
Power 36–39 (1980); Currie, The Constitution in the Supreme Court:
The Powers of the Federal Courts, 1801–1835, 49 U. Chi. L. Rev. 646,
719 (1982); C. Wright, Law of Federal Courts 41 (4th ed. 1983); Fallon,
Of Legislative Courts, Administrative Agencies, and Article III, 101
Harv. L. Rev. 915, 972 (1988); Bator, The Constitution as Architecture:
Legislative and Administrative Courts Under Article III, 65 Ind. L. J.
233, 240–242 (1990); G. Lawson & G. Seidman, The Constitution of
Empire 149 (2004). But the theory underlying our cases was widely
shared at the founding; our decisions have never seriously questioned
it; and, if taken at face value, it coheres with the rest of our jurispru-
dence. Seeing no need to revisit these precedents, I would not disturb
them. I certainly would not do what the majority has done: stretch an
arguably anomalous doctrine and export it (in mutated form) to other
contexts where it can only cause mischief.
18 ORTIZ v. UNITED STATES
ALITO, J., dissenting
U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at
11). And neither the majority nor the concurrence ever
explains how the Constitution’s various provisions relating
to the military, through their penumbras and emanations,
can be said to produce a hybrid executive-judicial power
that is nowhere mentioned in the Constitution’s text, that
is foreclosed by its structure, and that had gone almost
entirely unnoticed before today.
Thus, to make the majority’s argument parallel to the
argument regarding the courts of the Territories and the
District of Columbia, the majority would have to argue
that the military, like the governments of the Territories
and the District, is somehow not part of the Federal Gov-
ernment—“not organized under the Constitution, . . . as
the organic law,” Benner, 9 How., at 242—but is a gov-
ernment unto itself. To set out that argument, however, is
to expose its weakness, for nothing could be more antithet-
ical to the Constitution and to our traditional understand-
ing of the relationship between the military and civilian
authority. The military is not an entity unto itself, sepa-
rate from the civilian government established by the
Constitution. On the contrary, it is part of the Executive
Branch of the Government of the United States, and it is
under the command of the President, who is given the
power of Commander in Chief and is ultimately answer-
able to the people.
To appreciate the constitutional status of military tri-
bunals, it is helpful to recall their origins. Courts-martial
are older than the Republic, and they have always been
understood to be an arm of military command exercising
executive power, as opposed to independent courts of law
exercising judicial power. Blackstone declared that the
court-martial system of the British Empire was based
solely on “the necessity of order and discipline” in the
military. 1 Blackstone 400. Indeed, Blackstone explained
that courts-martial exercise a “discretionary power” to
Cite as: 585 U. S. ____ (2018) 19
ALITO, J., dissenting
“inflict” “punishment . . . extend[ing] to death itself,”
which was “to be guided by the directions of the crown,” in
express contrast to “the king’s courts” which dispense
“justice according to the laws of the land.” Id., at 402, 400.
The crown’s “extensive” power over the military—
exercised, in part, through courts-martial—was “executive
power.” Id., at 408. Many others have echoed the point.
Thus, “[a]t the time of our separation [from Britain], . . . a
court-martial . . . was not a judicial body. Its functions
were not judicial functions. It was but an agency of the
power of military command to do its bidding.” Ansell,
Military Justice, 5 Cornell L. Q. 1, 6 (1919).
When the United States declared its independence and
prepared for war with Britain, the leaders of the new
Nation were deeply impressed by the British court-martial
system and sought to replicate it. John Adams, who in
1776 drafted the Continental Articles for the Government
of the Army, was convinced that it would be “in vain” for
the American patriots to seek “a more complete system of
military discipline” than the existing British model. 3 The
Works of John Adams 68 (C. Adams ed. 1851). He and
Thomas Jefferson therefore proposed adopting “the British
articles of war, totidem verbis.” Id., at 68–69. The Conti-
nental Congress agreed. Id., at 69. And when the Consti-
tution and the Bill of Rights were adopted, no one sug-
gested that this required any alteration of the existing
system of military justice. On the contrary, as the majority
recounts, the First Congress continued the existing arti-
cles of war unchanged. Ante, at 10. Courts-martial fit
effortlessly into the structure of government established
by the Constitution. They were instruments of military
command. Under the Constitution, the President, as the
head of the Executive Branch, was made the Commander
in Chief. Art. II, §2. So the role of the courts-martial was
to assist the President in the exercise of that command
authority.
20 ORTIZ v. UNITED STATES
ALITO, J., dissenting
The ratification of the Constitution and the Bill of
Rights did naturally raise some constitutional questions.
For example, founding-era courts-martial adjudicated a
long list of offenses, some carrying capital punishment,
including for crimes involving homicide, assault, and theft.
American Articles of War of 1776, §13, in 2 W. Winthrop,
Military Law and Precedents 1495–1498 (2d ed. 1896)
(Winthrop); see also, e.g., American Articles of War of
1806, Arts. 39, 51, 54, in id., at 1514–1516. In civilian life,
a person charged with similar offenses was entitled to
protections, such as trial by jury, that were unavailable in
courts-martial. Moreover, the Constitution entitled such
persons to judicial process—which courts-martial, lacking
the necessary structural attributes of Article III courts,
could not afford. So how could they try serious crimes,
including even capital offenses?
The simple answer goes back to the fundamental nature
of courts-martial as instruments of command. As Black-
stone recognized, the enforcement of military discipline,
an essential feature of any effective fighting force, was
viewed as an executive prerogative. It represented the
exercise of the power given to the President as the head of
the Executive Branch and the Commander in Chief and
delegated by him to military commanders. Thus, adjudi-
cations by courts-martial are executive decisions; courts-
martial are not courts; they do not wield judicial power;
and their proceedings are not criminal prosecutions within
the meaning of the Constitution. As we explained in
Milligan, the need to maintain military order required
those serving in the military to surrender certain rights
that they enjoyed in civilian life and to submit to disci-
pline by the military command. Although Milligan con-
firmed the general rule that “it is the birthright of every
American citizen” to have the Federal Government adjudi-
cate criminal charges against him only in an Article III
court, 4 Wall., at 119, 122, we also stated that “[e]very one
Cite as: 585 U. S. ____ (2018) 21
ALITO, J., dissenting
connected with” “the military or naval service . . . while
thus serving, surrenders his right to be tried by the civil
courts,” id., at 123. That is why the historical evidence
strongly suggests that the provisions of the Bill of Rights
were not originally understood to apply to courts-martial.
See Prakash, The Sweeping Domestic War Powers of
Congress, 113 Mich. L. Rev. 1337, 1346 (2015); Wiener,
Courts-Martial and the Bill of Rights: The Original Prac-
tice II, 72 Harv. L. Rev. 266, 290–291, 294 (1958); see also
1 Winthrop 54, 241, 430, 605; Milligan, supra, at 137–138
(Chase, C. J., concurring in judgment).4
Due to reforms adopted in the recent past, it is possible
today to mistake a military tribunal for a regular court
and thus to forget its fundamental nature as an instru-
ment of military discipline, but no one would have made
that mistake at the time of the founding and for many
years thereafter. Notwithstanding modest reforms in
1874, a court-martial continued into the 20th century to
serve “primarily as a function or instrument of the execu-
tive department to be used in maintaining discipline in
the armed forces. It was therefore not a ‘court,’ as that
term is normally used.” Schlueter, The Court-Martial: An
Historical Survey, 87 Mil. L. Rev. 129, 150–153, 154–155
(1980). Hence, Colonel Winthrop—whom we have called
“the ‘Blackstone of Military Law,’ ” Reid v. Covert, 354
U.S. 1, 19, n. 38 (1957) (plurality opinion)—echoed the
original Blackstone in describing courts-martial as “simply
instrumentalities of the executive power, provided by Con-
gress for the President as Commander-in-chief, to aid him
in properly commanding the army and navy and enforcing
——————
4 In fact, “for over half a century after the adoption of the Bill of
Rights, its provisions were never invoked in a military situation save in
a single instance,” and in that case “the denial of its applicability to the
military . . . was approved by no less an authority than the father of the
Bill of Rights himself.” Wiener, Courts-Martial and the Bill of Rights:
The Original Practice II, 72 Harv. L. Rev. 266, 291 (1958).
22 ORTIZ v. UNITED STATES
ALITO, J., dissenting
discipline therein.” 1 Winthrop 54.
Indeed, Brigadier General Samuel T. Ansell, who served
as acting Judge Advocate General from 1917 to 1919,
groused that the American system at the time of World
War I was still “basically . . . the British system as it
existed at the time of the separation,” and described it as
one “arising out of and regulated by the mere power of
Military Command rather than Law.” Ansell, 5 Cornell
L. Q., at 1. Around the same time, Edmund Morgan—who
would later help draft the Uniform Code of Military Jus-
tice (UCMJ)—declared it “too clear for argument that the
principle at the foundation of the existing system is the
supremacy of military command. To maintain that princi-
ple, military command dominates and controls the pro-
ceeding from its initiation to the final execution of the
sentence. While the actual trial has the semblance of a
judicial proceeding and is required to be conducted pursu-
ant to the forms of law, . . . [i]n truth and in fact, . . .
courts-martial are exactly what Colonel Winthrop has
asserted them to be.” Morgan, The Existing Court-Martial
System and the Ansell Army Articles, 29 Yale L. J. 52, 66
(1919).
For instance, until 1920 the President and commanding
officers could disapprove a court-martial sentence and
order that a more severe one be imposed instead, for
whatever reason. We twice upheld the constitutionality of
this practice, Swaim v. United States, 165 U.S. 553, 564–
566 (1897); Ex parte Reed, 100 U.S. 13, 20, 23 (1879),
which was widely used during World War I, see Wiener,
supra, at 273. Similarly, until 1920 it was permissible for
the same officer to serve as both prosecutor and defense
counsel in the same case. West, A History of Command
Influence on the Military Judicial System, 18 UCLA
L. Rev. 1, 14 (1970). Congress discontinued such practices
by statute, but through the end of World War II, courts-
martial remained blunt instruments to enforce discipline.
Cite as: 585 U. S. ____ (2018) 23
ALITO, J., dissenting
Schlueter, supra, at 157–158; see also West, supra, at 8,
n. 18.
It is precisely because Article II authorizes the Presi-
dent to discipline the military without invoking the judi-
cial power of the United States that that the Constitution
has always been understood to permit courts-martial to
operate in the manner described above. Thus, in Dynes v.
Hoover, 20 How. 65, 79 (1858), we said that the Constitu-
tion makes clear that the Government’s power to “tr[y]
and punis[h]” military offenses “is given without any
connection between it and the 3d article of the Constitu-
tion defining the judicial power of the United States;
indeed, that the two powers are entirely independent of
each other.”
Moreover, the principle that the Government need not
exercise judicial power when it adjudicates military of-
fenses accords with the historical understanding of the
meaning of due process. In the 19th century, it was widely
believed that the constitutional guarantee of due process
imposed the rule that the Government must exercise its
judicial power before depriving anyone of a core private
right. See generally Nelson, Adjudication in the Political
Branches, 107 Colum. L. Rev. 559, 562, 568–569, and n. 42
(2007); e.g., Cohen v. Wright, 22 Cal. 293, 318 (1863) (“The
terms ‘due process of law’ have a distinct legal significa-
tion, clearly securing to every person . . . a judicial trial . . .
before he can be deprived of life, liberty, or property”);
Murray’s Lessee v. Hoboken Land & Improvement Co., 18
How. 272, 275, 280 (1856) (similar). Yet for most of our
history we held that “[t]o those in the military or naval
service of the United States the military law is due pro-
cess.” Reaves v. Ainsworth, 219 U.S. 296, 304 (1911);
United States ex rel. French v. Weeks, 259 U.S. 326, 335
(1922); see also Milligan, 4 Wall., at 138 (Chase, C. J.,
concurring in judgment) (“the power of Congress, in the
government of the land and naval forces and of the militia,
24 ORTIZ v. UNITED STATES
ALITO, J., dissenting
is not at all affected by the fifth or any other amend-
ment”); Wiener, 72 Harv. L. Rev., at 279 (in the history of
courts-martial, “of due process of law as a constitutional
concept, there is no trace”); cf. 1 Blackstone 403–404
(explaining the basic due process rights soldiers surrender
upon entering the army).
This understanding of the power wielded by military
tribunals parallels our current jurisprudence regarding
the authority of other Executive Branch entities to adjudi-
cate disputes that affect individual rights. An exercise of
judicial power may be necessary for the disposition of
private rights, including the rights at stake in a criminal
case. B&B Hardware, 575 U. S., at ___–___ (THOMAS, J.,
dissenting) (slip op., at 12–13); see also Wellness Int’l
Network, Ltd. v. Sharif, 575 U.S. ___, ___ (2015) (THOMAS,
J., dissenting) (slip op., at 6). But the adjudication of
public rights does not demand the exercise of judicial
power. Id., at ___–___ (slip op., at 6–7). Similarly, en-
forcement of military discipline is not a function that
demands the exercise of judicial power, either. Dynes,
supra; Murray’s Lessee, supra, at 284.
In short, military offenses are “exceptions” to Article III
in the same way that true public rights disputes are ex-
ceptions to Article III: the Federal Government can adju-
dicate either one without exercising its judicial power.
This means that when Congress assigns either of these
functions to an Executive Branch tribunal—whether the
Patent Trial and Appeal Board, the Court of Claims, or the
CAAF—that does not imply that the tribunal in question
is exercising judicial power. And the point holds notwith-
standing the undoubted fidelity to “the rule of law” that
such officers bring to their tasks. Ante, at 11, n. 5. Con-
trary to the majority’s odd suggestion, acting “in strict
compliance with legal rules and principles” is not a
uniquely judicial virtue. Ibid. The most basic duty of the
President and his subordinates, after all, is to “take Care
Cite as: 585 U. S. ____ (2018) 25
ALITO, J., dissenting
that the Laws be faithfully executed.” Art. II, §3 (empha-
sis added). Hence, acting with fidelity to law is something
every executive officer is charged with doing, but those
officers remain executive officers all the same. For that
reason, and in light of the history recounted above, the
majority’s suggestion that “[t]he military justice system’s
essential character” is “judicial,” and has been “main-
tained” as such since the “very first Congress,” ante, at 8,
10, simply does not square with the actual operation of the
court-martial system or the consensus view of its place in
our constitutional scheme.
C
In response to this history, the majority tries to enlist
Colonel Winthrop as an ally, ante, at 10–11, and n. 5, but
Winthrop had a firmer grasp than the majority on the
distinction between functions that can be described as
“judicial” in a colloquial sense and functions that repre-
sent an exercise of “judicial power” in the constitutional
sense. Thus, while Winthrop observed that courts-martial
resemble constitutional courts in certain respects, he
made those observations “[n]otwithstanding that the
court-martial is only an instrumentality of the executive
power having no relation or connection, in law, with the
judicial establishments of the country.” 1 Winthrop 61
(emphasis added). Nor was Winthrop the only military
commentator who employed such terms casually from time
to time. E.g., W. De Hart, Observations on Military Law 6
(1859) (describing an officer’s authority to appoint mem-
bers of a court-martial as “a legislative power”); id., at 14
(describing courts-martial as “being clothed with judicial
powers”). Indeed, our own Court has frequently described
functions as “judicial” in a colloquial sense, despite know-
ing they are executive in the constitutional sense. E.g.,
Smelting Co. v. Kemp, 104 U.S. 636, 640 (1882) (Land
Department officers “exercise a judicial function” although
26 ORTIZ v. UNITED STATES
ALITO, J., dissenting
they are “part of the administrative and executive branch
of the government”); Murray’s Lessee, 18 How., at 280–
281; Vallandigham, 1 Wall., at 253; Arlington, 569 U. S.,
at 304–305, n. 4.
The majority’s reliance on Attorney General Bates is
even weaker. Ante, at 10. Bates wrote a memo to Presi-
dent Lincoln opining that when the President acts to
“approve and confirm the sentence of a court martial,” or
to “revis[e] its proceedings,” Congress intended him to “act
judicially—that is, [to] exercise the discretion confided to
him within the limits of law.” 11 Op. Atty. Gen. 20–21
(1864). Bates was arguing that a President could not
revoke a court-martial sentence after it had been carried
into execution. He was describing an implicit limit on the
power of the President under the system of military justice
established by statute. His reference to certain Presiden-
tial actions as “judicial” had nothing to do with judicial
review, and in Vallandigham, supra, at 254, we rejected
the idea that “the President’s action” in approving a court-
martial decision is an exercise of judicial power that we
can review directly.
In sum, the majority has done nothing to undermine the
overwhelming historical consensus that courts-martial
permissibly carry out their functions by exercising execu-
tive rather than judicial power.
III
What remains of the majority’s analysis boils down to
the assertion that courts-martial “resemble” conventional
courts, ante, at 9, indeed, that “court-likeness” is the
dispositive issue, ante, at 16 (emphasis deleted).
The first thing to be said in response to this theory is
that we have “never adopted a ‘looks like’ test to deter-
mine if an adjudication” involves an exercise of judicial
power. Oil States, 584 U. S., at ___ (slip op., at 15). On
the contrary, we have frequently repudiated this mode of
Cite as: 585 U. S. ____ (2018) 27
ALITO, J., dissenting
analysis as utterly inadequate to police separation-of-
powers disputes. See, e.g., INS v. Chadha, 462 U.S. 919,
953, n. 16 (1983); Arlington, supra; Gordon, 117 U. S.
Appx., at 699. In fact, of all the cases on which the majority
relies, not a single one suggests that our appellate juris-
diction turns on the extent to which the underlying tribu-
nal looks like a court.
In any event, the majority’s “looks like” test fails on its
own terms. It is certainly true that today’s military justice
system provides many protections for the accused and is
staffed by officers who perform their duties diligently,
responsibly, and with an appropriate degree of independ-
ence. Nothing I say about the current system should be
interpreted as denigrating that system or as impugning
the dedication, professionalism, and integrity of the offi-
cers who serve in it, notwithstanding the majority’s insist-
ence to the contrary. Ante, at 11, n. 5. As explained
above, military officers’ undoubted fidelity to law has
nothing to do with the court-martial system’s status under
our Constitution. That status is what my point here
concerns. And that status has never changed.
Today’s court-martial system was put in place in 1950,
when Congress enacted the UCMJ in response to criticism
following World War II. 64 Stat. 108. Among its innova-
tions, the UCMJ subjected courts-martial to more elabo-
rate procedural rules than ever before. It also created a
system of internal appellate tribunals within the military
chain of command. Those entities—which we now call the
Army, Navy-Marine Corps, Air Force, and Coast Guard
Courts of Criminal Appeals and the Court of Appeals for
the Armed Forces—did not exist before 1950. Congress
augmented this system in 1983, for the first time in Amer-
ican history providing for direct Supreme Court review of
certain decisions of the highest military tribunal. 97 Stat.
1405–1406; 10 U.S. C. §867a; 28 U.S. C. §1259.
Such reforms, as I have indicated, are fully consistent
28 ORTIZ v. UNITED STATES
ALITO, J., dissenting
with the President’s overriding duty to “faithfully ex-
ecut[e]” the laws. Art. II, §3. Hence, even after Congress
passed the UCMJ, we continued to recognize that the
court-martial system “has always been and continues to be
primarily an instrument of discipline,” O’Callahan v.
Parker, 395 U.S. 258, 266 (1969), and that “courts-martial
are constitutional instruments to carry out congressional
and executive will,” Palmore, 411 U. S., at 404; see also,
e.g., Reid, 354 U. S., at 36 (plurality opinion); United
States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955);
Chappell v. Wallace, 462 U.S. 296, 300 (1983). For that
reason, even if the majority were to begin its analysis in
1950, and to confine it to the CAAF—which the majority
has not done—it would still be incorrect to perceive any-
thing other than executive power at issue here.
An examination of the CAAF confirms this point. The
CAAF’s members are appointed by the President for a
term of years, and he may remove them for cause, 10
U.S. C. §§942(b), (c), under a standard we have recognized
as “very broad,” Bowsher v. Synar, 478 U.S. 714, 729
(1986). These and other provisions of the UCMJ “make
clear that [the CAAF] is within the Executive Branch.”
Edmond v. United States, 520 U.S. 651, 664, n. 2 (1997).
For instance, the CAAF is subject to oversight by the
Secretaries of Defense, Homeland Security, and the mili-
tary departments, and its members must meet annually to
discuss their work with members of the military and
appointees of the Secretary of Defense. 10 U.S. C. §946.
The CAAF must review any case a Judge Advocate Gen-
eral orders it to hear. §867(a)(2). And, contrary to the
majority’s assertion, the CAAF’s decisions are not “final
(except if we review and reverse them).” Ante, at 18.
In fact, in the most serious cases that the CAAF re-
views—those in which a court-martial imposes a sentence
of death or dismissal from the Armed Forces—the CAAF’s
judgment cannot be executed until the President, the
Cite as: 585 U. S. ____ (2018) 29
ALITO, J., dissenting
relevant branch Secretary, or one of his subordinates
approves it. 10 U.S. C. §§871(a), (b). That is why the
UCMJ provides that “[a]fter [the CAAF] has acted on a
case,” the “convening authority [shall] take action in ac-
cordance with that decision,” “unless there is to be further
action by the President or the Secretary concerned.”
§867(e) (emphasis added). In such cases the “proceedings,
findings, and sentences” of the court-martial system—
including the CAAF’s “appellate review”—are not final
until approved. §876.5 Indeed, even if our Court affirms
such a judgment, it cannot be executed until the relevant
military authority approves it—a requirement that is not
subject to any timeframe or substantive standards. See
Manual for Courts-Martial, United States Rule for Courts-
Martial 1205(b) (2016).6
Such revisory powers have always been a feature of the
court-martial system. 1 Winthrop 683. And because the
UCMJ preserves the chain of command’s historic revisory
power over the CAAF’s most significant decisions, there is
no way for us to conclude that the CAAF is “judicial”
under any known definition of that term. And it should
not matter that Ortiz’s own sentence is not subject to
——————
5 Thus, JUSTICE THOMAS is mistaken when he asserts that “[t]he Ex-
ecutive Branch has no statutory authority to review or modify the
CAAF’s decisions.” Ante, at 7 (concurring opinion). And anyway, even
if the CAAF’s decisions were final, it would not imply that they are
judicial. Insofar as the Government can adjudicate military offenses
without exercising its judicial power, finality would be equally con-
sistent with executive as well as judicial power.
6 For example, in 1996 we granted certiorari to the CAAF and af-
firmed the court-martial conviction and capital sentence of Dwight
Loving. Loving v. United States, 517 U.S. 748 (1996). Yet our judg-
ment could not be deemed final—and hence could not be carried out—
until the President approved it. Neither President Clinton nor Presi-
dent Bush would do so. Loving v. United States, 68 M.J. 1, 3 (CAAF
2009). President Obama eventually commuted the sentence to life
without parole, https://www.justice.gov/pardon/obama-commutations
(as last visited June 21, 2018).
30 ORTIZ v. UNITED STATES
ALITO, J., dissenting
approval, just as it did not matter that the Court of Claims
decision at issue in Gordon was not subject to review by
the Treasury Secretary. This point is elementary. At
least since Hayburn’s Case, 2 Dall., at 411, n., 413, n., it
has been firmly established that it is “radically incon-
sistent” with the “judicial power” for any court’s judg-
ments, “under any circumstances,” to “be liable to a rever-
sion, or even suspension,” by members of the Executive or
Legislative Branches. Indeed, “[t]he award of execution is
a part, and an essential part of every judgment passed by
a court exercising judicial power.” Gordon, 117 U. S.
Appx., at 702; Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 218–219 (1995).
Simply put, the CAAF’s Executive Branch status is
more than a label. The CAAF is what we have always
thought it to be: an agent of executive power to aid the
Commander in Chief. It follows that our appellate juris-
diction does not permit us to review its decisions directly.
That conclusion is unaffected by Congress’s decision to
give greater procedural protections to members of the
military. Nor would the conclusion be altered if Congress
imported into the military justice system additional rights
and procedures required in the civilian courts. If Congress
wants us to review CAAF decisions, it can convert that
tribunal into an Article III court or it can make CAAF
decisions reviewable first in a lower federal court—
perhaps one of the regional Courts of Appeals or the Fed-
eral Circuit—with additional review available here. But
as long as the CAAF retains its current status as an Exec-
utive Branch entity, Congress cannot give our Court juris-
diction to review its decisions directly.
* * *
The arguments in this case might appear technical, but
important interests are at stake. The division between
our Court’s original and appellate jurisdiction provoked
Cite as: 585 U. S. ____ (2018) 31
ALITO, J., dissenting
extended and impassioned debate at the time of the found-
ing. See Amar, Marbury, Section 13, and the Original
Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443,
468–478 (1989). The Framers well understood that the
resolution of this dry jurisdictional issue would have
practical effects, ibid., and in a similar vein, the Court’s
holding that the CAAF exercises something akin to judi-
cial power will have unavoidable implications for many
important issues that may arise regarding the operation of
the military justice system, not to mention judicial review
of the many decisions handed down by administrative
agencies.
The majority disclaims the latter possibility, ante, at 19,
but its effort is halfhearted at best. In reality there is no
relevant distinction, so far as our appellate jurisdiction is
concerned, between the court-martial system and the
“other adjudicative bodies in the Executive Branch” that
the majority tells us not to worry about. Ibid. The majority
cites the “judicial character . . . of the court-martial
system,” as well as its “constitutional foundations and
history,” ibid., but as I have explained, the constitutional
foundations, history, and fundamental character of mili-
tary tribunals show that they are Executive Branch enti-
ties that can only permissibly exercise executive power—
just like civilian administrative agencies.
The Founders erected a high wall around our original
jurisdiction, deliberately confining it to two classes of
cases that were unlikely to touch the lives of most people.
See The Federalist No. 81, at 488. Today’s decision erodes
that wall. Because the Court ignores both the wisdom of
the Founders, the clear, consistent teaching of our prece-
dents, and the unambiguous text of the Constitution, I
respectfully dissent.