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131 Yale L.J. F. 1 (2021-2022)

handle is hein.journals/yljfor131 and id is 1 raw text is: THE YALE LAW JOURNAL FORUM MAY 31, 2021 Equal Supreme Court Access for Military Personnel: An Overdue Reform Eugene R. Fidell, Brenner M. Fissell & Philip D. Cave ABSTRACT. Federal law currently provides for direct Supreme Court review of criminal con- victions from almost all American jurisdictions, but not of most court-martial convictions. For them, an Article I court can veto access to the Supreme Court. This Essay argues for elimination of that veto. INTRODUCTION One might think that every criminal defendant in the United States has a right to seek review by the Supreme Court. But Congress has largely blocked the path of a particular group of defendants: persons convicted at courts-martial. This is because, under the Military Justice Act of 1983 (the 1983 Act),1 the only court-martial convictions eligible for Supreme Court review are cases in which a service Court of Criminal Appeals has affirmed a death sentence; cases certified by one of the Judge Advocates General (JAG); extraordinary writ cases in which relief has been granted; and cases granted discretionary review by the United States Court of Appeals for the Armed Forces (CAAF), the highest court of the military justice system.2 In this Essay, we argue that the limitation on cases within CAAF's discretion- ary jurisdiction, which account for the lion's share of that court's docket, is both unconstitutional and bad policy. First, by delegating to CAAF, an Article I court, the power to determine the Supreme Court's jurisdiction over appeals, Congress violated the separation of powers. Second, in making a comparatively small class of cases nonreviewable for the ostensible purpose of reducing the Supreme 1. Pub. L. No. 98-209, 97 Stat. 1398 (1983). 2. Id. § 1o. 1

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