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01/09/2018

More from Will Baude on Supreme Court Jurisdiction over Military Appeals
Michael Ramsey

At Volokh Conspiracy, Will Baude: Exciting Developments in Supreme Court Appellate Jurisdiction.  Here is the introduction:

Two months ago I wrote about a set of cases pending at the Supreme Court from the Court of Appeals for the Armed Forces: Dalmazzi, Cox, & Ortiz v. United States. [Ed.:  Discussed at the Originalism Blog here].  I argued that the Supreme Court lacked jurisdiction to hear an appeal directly from that so-called court (often called CAAF). Since then, some interesting things have happened.

First, that very same day, Professor Aditya Bamzai filed an amicus brief arguing that there was no appellate jurisdiction in the case. (Professor Bamzai was the first person I know of to spot this jurisdictional problem and alerted everybody to it in a previous case, which the Court eventually declined to review.)

Second, both the United States and the petitioner responded to this argument in their merits briefs, with the United States spending four pages arguing that Professor Bamzai was wrong because of previous precedents finding jurisdiction to review the decisions of territorial courts and state courts.

Third, last Friday, the Supreme Court took the very unusual step of giving Professor Bamzai ten minutes of time at oral argument to discuss the jurisdictional problem. It is unusual for a non-government amicus to be given any argument time, but this is particularly important since both of the parties disagree with Bamzai's argument against jurisdiction.

It is far too soon to get one's hopes up, but all of these things strike me as very promising developments. For reasons I will discuss in a draft paper, tentatively titled "Locating Non-Article III Adjudication" (or maybe "So-called Legislative Courts") I think that Professor Bamzai is correct. I will try to boil my reasons down to five quick points ...

Congratulations to Professor Bamzai.