The Court’s decision in Turner v. Safely is a benchmark example of the Court’s ability to establish a framework for analyzing constitutional issues in a community with which it is not familiar with, willingness to engage with the community and apply the framework, and take a disciplined approach to its role as the court of last resort in its Congressionally-created jurisdiction.
My initial foray into military justice scholarship began a number of years ago with a general hypothesis:
The Supreme Court of the United States is today, in part, largely hands off toward the military justice system because of the existence of the United States Court of Appeals of the Armed Forces, a civilian court sitting atop a three-tiered judicial system. Though it is perceived, and perceives itself, as a court of last resort, it does not appear to often act like one. This is because the military jurisdiction created by the Uniform Code of Military Justice in 1950 was a compromise between those advocating for the elimination of command control of the military justice system and those advocating maintaining the existing system.
It is interesting because the military justice system is a decently sized jurisdiction compared to the fifty states. And if the United States Court of Appeals for the Armed Forces were an Article III intermediate appellate court, hearing every court-martial appeal as a matter of right, its workload would most closely mirror that of the United States Court of Appeals for the First Circuit.
Not only is it a sizeable jurisdiction, Congress used the military justice system as the framework for creating the military commissions system to prosecute certain “enemy belligerents” (think 9/11, War on Terror type folks). But Congress provided noticeably more due process to those belligerents than it provided American service members subject to military justice. Fewer than ten military commissions have reached completion in the nearly two decades of their existence, yet commissions enjoy considerably more attention in academic journals.
I have enjoyed testing this hypothesis over the past several years. I’ll be sharing that experience on these pages for a while. Some of my research culminated in published articles, some I will share for the first time here. Along the way, I’ll let my mind wander and go on a few tangents and down some rabbit holes.