The Supreme Court's jurisdiction to review CAAF cases is entirely a creature of statute. The statute that created that authority is the Military Justice Act of 1983, codified for current purposes at 28 U.S.C. § 1259. Unfortunately for the government in Denedo, § 1259 is highly restrictive in its jurisdictional grant. Usually these restrictions favor the government and disadvantage the accused. But in Denedo, § 1259's jurisdictional gerrymandering happens to hurt the government.
Let's compare the statute that authorizes SCOTUS review of the Article III courts of appeals' decisions with that authorizing SCOTUS review of CAAF decisions. 28 U.S.C. § 1254 provides, in relevant part: "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." If a similar statute applied to review of CAAF decisions, then the Supreme Court would have jurisdiction to review Denedo now, though it would have complete discretion to decline to exercise that jurisdiction for any reason, including lack of ripeness. But the statute providing SCOTUS jurisdiction over CAAF cases reads nothing like § 1254 -- and the reason it doesn't was to severely restrict military appellants' right to even seek cert. § 1259 provides:
Decisions of the United States Court of Appeals for the Armed Forces may be reviewed by the Supreme Court by writ of certiorari in the following cases:The only basis under which Denedo could possibly qualify for review is (4), but since CAAF didn't "grant relief," as that phrase is typically construed, it doesn't fall within SCOTUS's statutory jurisdiction.
(1) Cases reviewed by the Court of Appeals for the Armed Forces under section 867(a)(1) of title 10.
(2) Cases certified to the Court of Appeals for the Armed Forces by the Judge Advocate General under section 867(a)(2) of title 10.
(3) Cases in which the Court of Appeals for the Armed Forces granted a petition for review under section 867(a)(3) of title 10.
(4) Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces granted relief.
So those who think that the United States should have a right to seek SCOTUS review of Denedo now should be getting in touch with their members of Congress to seek an amendment to § 1259 to make it read more like § 1254.
Interestingly, neither of the pending bills before Congress to expand SCOTUS's cert jurisdiction over military justice cases wouldn't bring Denedo within the Supremes' statutory cert jurisdiction. Both H.R. 3174 (which has been passed by the full House of Representatives) and S. 2052 (which has been favorably reported out of the Senate Judiciary Committee) would amend § 1259 by adding "or denied" after "granted" in subsections 3 and 4. But because relief has yet to be either granted nor denied in Denedo, SCOTUS statutory cert jurisdiction doesn't exist now and still wouldn't exist even if one of those bills were to become law.
But there's no cause for alarm unless and until § 1259 is amended to function more like § 1254. If CAAF ever were to actually affect the United States' interests by granting relief in Denedo or some similar case, then the United States would have jurisdiction under current law to seek relief from the Supremes. In essence, the current version of § 1259 elevates what would normally be the prudential consideration of ripeness into an actual jurisdictional requirement.