Military Courts and Article III
Citation: 103 Geo L.J. 933 (2015)
Few areas of the Supreme Court’s federal courts jurisprudence raise as many questions—and provide as few coherent answers—as the permissible scope of Congress’s power to invest the “judicial [p]ower of the United States” in actors other than judges who enjoy Article III’s tenure and salary protections, and, in the case of criminal trials, to do so without the protections (especially the right to a local jury) enshrined in Article III, Section 2, Clause 3. Historically, the Court has identified three categories in which such “non-Article III” federal adjudication is permissible: (1) all adjudication by federal “territorial” courts; (2) certain criminal prosecutions before military judges; and (3) resolution of “public rights” disputes by non-Article III federal courts or federal administrative agencies. But it has never sought to explain whether the decisions articulating these principles “in fact support a general proposition and three tidy exceptions . . . or whether instead they are but landmarks on a judicial ‘darkling plain’ where ignorant armies have clashed by night.” . . .