A University of Virginia law professor earned rare kudos from the U.S. Supreme Court bench Friday for offering the justices a “new” argument that questioned their authority to review decisions of the military’s top appellate court.
In Ortiz v. United States, Justice Elena Kagan, writing for a 7-2 majority, devoted 19 pages of her 25-page opinion to the jurisdictional question and professor Aditya Bamzai’s argument, which she called “serious and deserving of sustained consideration.”
Bamzai had argued in an amicus brief that the judges of the U.S. Court of Appeals for the Armed Forces are executive branch officers and, as such, the U.S. Supreme Court could not exercise its appellate jurisdiction over that court’s decisions. He cited for authority the high court’s landmark Marbury v. Madison.
Summarizing her opinion from the bench—a ruling that rejected Bamzai’s argument—Kagan told the audience, “As I hope readers of today’s decision will agree when they read all the opinions in this case, including a concurrence and a dissent, professor Bamzai provoked some good and hard thinking on all sides.”
Kagan said the majority’s jurisdiction decision “rested on the judicial character, as well as the constitutional foundations and history, of the court-martial system.” The decision, she added, also relied on “the connections that our cases have long drawn between that judicial system and those of the territories and the District [of Columbia].”
Bamzai said in a statement: “Although disappointed by the outcome, I’m grateful that the court took seriously the argument that I raised, which (at a very general level) involves the appropriate constitutional balance between the three branches of our federal government. That question is sure to come up again in future cases.”
Bamzai earlier scored another rare act by the justices. The court was interested enough in his arguments to give him 10 minutes of argument time in the Ortiz case.
The Ortiz opinion is here: https://t.co/bp49ya8t5t
Although I wish it had turned out otherwise, my sincere gratitude to the Justices for considering my argument. And my thanks, once again, to @adamjwhitedc and my @uvalaw colleagues for their encouragement and support.
— Aditya Bamzai (@adityabamzai) June 22, 2018
While not unprecedented, a pro se lawyer’s argument before the justices is unusual. Bankruptcy trustee Jan Hamilton argued Hamilton v. Lanning in 2010. Michael Newdow faced the justices in 2004′s Elk Grove United School District v. Newdow, and Silvia Ibanez successfully defended her advertising practice in 1994 in Ibanez v. Florida Board of Accountancy.
In Ortiz, convicted Airman Keanu Ortiz challenged the legality of a military officer serving concurrently as a judge on the Air Force appeals court and the Court of Military Commission Review, which reviews decisions arising out of military justice proceedings at Guantanamo Bay. Ortiz, represented by Stephen Vladeck of the University of Texas School of Law, argued that the judge’s dual officeholding violated a Civil War-era statute and the Constitution’s appointments clause.
The high court rejected those arguments, holding that the challenged judge’s dual role was authorized by Congress and there is nothing in the appointments clause that would prohibit that type of dual officeholding.