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High-school civics classes across the country present Marbury v. Madison as the case that cemented the Supreme Court’s ability to refuse to enforce federal laws that are repugnant to the Constitution. That historical fact, however, largely overshadows the core holding in the case, which defines the Supreme Court’s original and appellate jurisdiction. Specifically, Marbury held that Congress may not expand the Supreme Court’s original jurisdiction beyond that which Article III establishes, and it defined “the essential criterion of appellate jurisdiction” as the revision and correction of “proceedings in a cause already instituted.”

Though this longstanding precedent has shaped the American appellate system since 1803, the Supreme Court effectively overturned it in the 2018 case Ortiz v. United States.

Ortiz involved a direct appeal from the Court of Appeals for the Armed Forces (CAAF). Unlike traditional Article III courts, the CAAF is an Article I court established by Congress and operated by the Article II executive. The court was specifically established to hear appeals of military members tried by courts-martial under the Uniform Code of Military Justice. When convicted at a court-martial, a military member may appeal his conviction to the Court of Criminal Appeals (CCA) of his respective military department. From there, a party may petition the CAAF to review the case. The judges on the CAAF are like Article III judges insofar as they are appointed by the president with the advice and consent of the Senate; but unlike Article III judges, they serve fifteen-year terms and may be removed for cause.

The primary issue in Ortiz was whether a military officer serving as a judge on both the Air Force CCA and the Court of Military Commission Review violated the Appointments Clause or 10 U.S.C. Section 973(b), which prevents military officers from holding or exercising functions of certain civil offices. But, as in any case, the Court first had to establish its Article III jurisdiction.

The issue of Article III jurisdiction was raised not by the parties, but by an amicus brief authored by Professor Aditya Bamzai from the University of Virginia. Congress authorized the Supreme Court to directly review CAAF decisions in 28 U.S.C. Section 1259. Professor Bamzai argued that because the case did not fall within the Court’s constitutionally established original jurisdiction, the Court could only review the CAAF’s decision under its appellate jurisdiction. The CAAF, however, is not an Article III court, but an executive branch entity. Thus, “[f]or constitutional purposes, the members of the CAAF . . . stand on equal footing with James Madison in Marbury” in that the CAAF is not a court over which the Supreme Court may exercise direct supervision. And if the Court could not review the case under its appellate jurisdiction, then, like section 13 of the Judiciary Act of 1789, 28 U.S.C. Section 1259 effectively expanded the Court’s original jurisdiction in violation of Marbury.

The majority rejected this argument, holding that the Court could hear the case under its Article III appellate jurisdiction. This, however, landed the majority in a catch-22. The majority admitted that, to obtain appellate jurisdiction, there must exist a “cause already instituted”—in other words, a preexisting case. But, as Justice Alito’s dissent (joined by Justice Gorsuch) convincingly argued, “what ‘creates’ a ‘case’ in the relevant sense . . . is the prior submission of the dispute to a tribunal that is lawfully vested with judicial power.” For a court-martial to constitute a preexisting case that the Supreme Court may review under its appellate jurisdiction, at least one of the court-martial, the CCA, or the CAAF must be a tribunal lawfully vested with the judicial power. These “courts,” however, are executive branch entities. They therefore may not exercise the judicial power of the United States, which is reserved for Article III courts alone. Alternatively, if the majority found that the military courts exercised only executive power, the Court could not exercise its appellate jurisdiction because there was no preexisting case. 

To avoid this situation, Justice Kagan, writing for the majority, looked to “the judicial character, as well as the constitutional foundations and history, of the court-martial system.” Moreover, she compared military courts to territorial courts and courts within the District of Columbia, over both of which the Supreme Court’s appellate jurisdiction has been established. She was careful, however, to note that the opinion “say[s] nothing about whether we could exercise appellate jurisdiction over cases from other adjudicative bodies in the Executive Branch, including those in administrative agencies.”

This ruling leaves court-watchers with more questions than answers. Specifically, from what other executive branch, quasi-judicial bodies can the Supreme Court take direct appeals? For instance, could the Supreme Court hear a direct appeal from the Court of Appeals for Veterans Claims? What about an appeal from the Court of Federal Claims? And, if the Supreme Court can hear such cases, what other types of Article I courts could Congress create whose decisions could be directly appealed to the Supreme Court?

The answer to these questions will likely depend on what the Court chooses to emphasize in the future: (1) the judicial character of the entity or (2) the constitutional foundations and history of the entity. If the latter, then Justice Thomas, writing in concurrence, may be correct—the military courts are best “thought of as an ‘exception’ 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.”

If the Court emphasizes the judicial character of the executive branch entity, however, then either one of two facts must be true: Either the Court’s appellate jurisdiction has been expanded to executive entities that exercise executive power yet have a “judicial character,” or Congress may now effectively expand the Court’s original jurisdiction to cover executive power exercised through quasi-judicial proceedings.

If the first is true, then Ortiz limited Marbury by expanding the Court’s appellate jurisdiction beyond “proceedings in a cause already instituted.” If the second is true, then Ortiz vitiated Marbury by allowing Congress to expand the Court’s original jurisdiction under the guise of appellate jurisdiction. Either way, Ortiz undermined the core holding in Marbury. While this change may not make it into high-school civics lessons, it is nonetheless a shift that should catch the attention of court-watchers.