Saturday, August 16, 2008

An idiosyncratic military justice expression

Judge Beal's ruling holding that a portion of the new Article 120 is unconstitutional, about which the Kabul Klipper posts below, is an important development. But the ruling sparks a completely trivial thought in my mind.

Have you noticed the Courts of Criminal Appeals' tendency to refer to CAAF as "our superior court"? I've always assumed that this phrase was used mainly to finesse CAAF's name change. If a CCA wants to discuss an opinion by CMA or a couple of opinions, one issued in the CMA age and one issued in the CAAF age, it can use the phrase "our superior court" without having to specifiy "CMA" or "CAAF." And a couple of LEXIS searches tend to support that theory. Before 1 October 1994, the CMRs and Boards of Review used the phrase "our superior court" 15 times in opinions available on LEXIS. Since then, the CCAs have used the phrase 1,795 times.

Use of the phrase has also expanded beyond the CCAs. In the two appellate systems in which I litigate -- the Air Force and the Navy-Marine Corps -- I've noticed appellate government counsel's filings using the phrase "our superior court." That phrase always struck me as a bit odd, since CAAF is the CCA's "superior court," not the Appellate Government Division's "superior court." In fact, both the CCA and CAAF are Code 46's and JAJG's superior courts. By referring to "our superior court," an appellate government division seems to be semantically putting itself at the same level as the CCA.

Now Judge Beal -- a former appellate government counsel -- takes use of the "our" construction a step further, referring to "our Supreme Court." That phrase appears in just four CCA/CMR/Board of Review decisions available on LEXIS -- and in one of them, it was used to refer to CMA. United States v. Arrington, 5 M.J. 756, 758-59 (A.C.M.R. 1978) (Cook, J., concurring).

While I've never particularly cared for the phrase "our superior court" -- especially when used by appellate government counsel -- there's something oddly charming about the phrase "our Supreme Court." It's a reminder that, yes, Supreme Court precedent is applicable to the military, though sometimes it applies differently in the military than in other contexts.

We'll watch to see whether the phrase "our Supreme Court" catches on with other military legal writers.

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