Close readers of Monday’s newsletter will have seen that I was supposed to appear before the Fourth Circuit yesterday to argue an issue I’ve previously argued in three other federal appeals courts—whether the Constitution permits the courts-martial of retired servicemembers for offenses they commit after they retire. As we learned around 5 p.m. on Tuesday, the argument was continued to the next available argument session. No other explanation for the postponement was provided, although my own bet is that there was a (very belated) recusal.
Challenging the scope of military jurisdiction has been a common thread of a lot of my academic and litigation work, going all the way back to the very beginning of my career. I had the privilege of getting to work on Hamdan v. Rumsfeld (the jurisdictional challenge to the first iteration of the post-9/11 military tribunals at Guantánamo) starting when I was a 2L in the spring of 2003. I wrote a series of articles about the limits on military jurisdiction as a relatively more junior law professor (including my favorite—“Military Courts and Article III,” which was published in the Georgetown Law Journal in 2015). And on the court-martial side, I’ve been invested in the retiree issue since 2018, shortly after we saw the beginning of the (still unexplained) flurry of recent courts-martial of retirees.
Through it all, I’ve never had occasion to reflect on why I’m so invested in questions of military jurisdiction—or so adamant about the need to properly cabin it. But given the extra time I had yesterday without either (1) a roundtrip drive to Richmond; or (2) an oral argument, I thought I’d use today’s bonus issue to flesh out some of my thoughts. I’ll unpack this in more detail below the fold, but the basic gist is that my training in college instilled in me a deep aversion to exceptional legal systems—no matter how well-designed they are or how well-intentioned the players within them may be.
The courts-martial of today may well provide far more than the “rough form of justice” that Justice Black indicted the military for dispensing in the 1950s. But there are still deep, profound normative reasons why, to quote a different 1955 majority opinion, “Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.’” Otherwise, it gets a lot easier to defend expanding the exceptional courts to cover ever more entirely ordinary cases—even, if not especially, when there’s no reason why the ordinary courts couldn’t handle those cases, too.
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