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More Supreme Court Originalism (Part 2)
Michael Ramsey

In addition to Carpenter v. United States, discussed in my prior post, two other Supreme Court cases from yesterday had extensive originalist discussions.

First, in Ortiz v. United States, the Court held that it had jurisdiction to hear appeals from non-Article III military courts.  Ortiz was convicted by a military court and appealed, but an enterprising University of Virginia law professor, Aditya Bamzai, objected.  As amicus curiae, Professor Bamzai argued that the Court lacked jurisdiction because (a) there was no appellate jurisdiction because the military court was really an executive rather than a judicial entity, and (b) there was no original jurisdiction because the Constitution did not provide it and (per Marbury) Congress cannot expand original jurisdiction.

The question split the Court's originalists.  Justice Kagan, writing for seven Justices, rejected this objection without much originalist analysis.  Justice Thomas concurred at length, explaining:

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 Constitution. 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.  [He explained this view over the next 10 pages.]

Justice Alito, joined by Justice Gorsuch, dissented at even greater length on the jurisdictional point, basically accepting Professor Bamzai's argument.  From the introduction:

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 Congress 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.

As an aside, this argument seems strongly to suggest that similarly Article II of the Constitution vests “[t]he executive Power"—"every single drop of it"—in the President; see Morrison v. Olson (Scalia, dissenting).  Also, "judicial" in "judicial Power" in Article III is not capitalized.  But I digress.

Justice Alito's dissent continues: 

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) (Blackstone) (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. Virginia, 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 Marbury 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. 

And since the military courts -- not being Article III courts -- can't be vested with the "judicial Power of the United States," there can't be an appeal from them directly to the Supreme Court.

Second, in Currier v. Virginia, the Court rejected a double jeopardy objection.  Justice Gorsuch, writing for five Justices, found the defendant had waived the objection by consenting to two separate trials for related offenses.  Writing for only four (Roberts, Thomas, Alito and himself; Kennedy thought the waiver was enough to decide the case), Gorsuch went on to reject double jeopardy as a possible objection where the offenses were related but not identical:

Mr. Currier’s problems begin with the text of the Double Jeopardy Clause. As we’ve seen, the Clause speaks not about prohibiting the relitigation of issues or evidence but offenses. Contrast this with the language of the Reexamination Clause. There, the Seventh Amendment says that “[i]n Suits at common law . . . no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” (Emphasis added.) Words in one provision are, of course, often understood “by comparing them with other words and sentences in the same instrument.” 1 J. Story, Commentaries on the Constitution of the United States §400, p. 384 (1833). So it’s difficult to ignore that only in the Seventh Amendment—and only for civil suits—can we find anything resembling contemporary issue preclusion doctrine.

What problems the text suggests, the original public understanding of the Fifth Amendment confirms. The Double Jeopardy Clause took its cue from English common law pleas that prevented courts from retrying a criminal defendant previously acquitted or convicted of the crime in question. See Scott, 437 U. S., at 87; 4 W. Blackstone, Commentaries on the Laws of England 329–330 (1769). But those pleas barred only repeated “prosecution for the same identical act and crime,” not the retrial of particular issues or evidence. Id., at 330 (emphasis added). As Sir Matthew Hale explained:

“If A. commit a burglary . . . and likewise at the same time steal goods out of the house, if he be indicted of larciny for the goods and acquitted, yet he may be indicted for the burglary notwithstanding the acquittal. And è converso, if indicted for the burglary and acquitted, yet he may be indicted of the larciny, for they are several offenses, tho committed at the same time.” 2 M. Hale, The History of the Pleas of the Crown, ch. 31, pp. 245–246 (1736 ed.).

Both English and early American cases illustrate the point. In Turner’s Case, 30 Kel. J. 30, 84 Eng. Rep. 1068 (K. B. 1663), for example, a jury acquitted the defendant of breaking into a home and stealing money from the owner. Even so, the court held that the defendant could be tried later for the theft of money “stolen at the same time” from the owner’s servant. Ibid. In Commonwealth v. Roby, 12 Pickering 496 (Mass. 1832), the court, invoking Blackstone, held that “[i]n considering the identity of the offence, it must appear by the plea, that the offence charged in both cases was the same in law and in fact.” Id., at 509. The court explained that a second prosecution isn’t precluded “if the offences charged in the two indictments beperfectly distinct in point of law, however nearly they may be connected in fact.” Ibid. (emphasis added). Another court even ruled “that a man  acquitted for stealing the horse hath yet been arraigned and convict for stealing the saddle, tho both were done at the same time.” 2 Hale, supra, at 246. These authorities and many more like them demonstrate that early courts regularly confronted cases just like ours and expressly rejected the notion that the Double Jeopardy Clause barred the relitigation of issues or facts. See also Grady v. Corbin, 495 U. S. 508, 533–535 (1990) (Scalia, J., dissenting) (collecting authorities); 2 W. Hawkins, Pleas of the Crown, ch. 35, p. 371 (1726 ed.); 1 J. Chitty, Criminal Law 452–457 (1816); M. Friedland, Double Jeopardy 179, and n. 2 (1969). Any suggestion that our case presents a new phenomenon, then, risks overlooking this long history. See post, at 4–5 (GINSBURG, J., dissenting).