“Congratulations to Jacob (Jake) Meusch for winning this year’s Kevin J.Barry Writing Award for his article,
The abstract describes this timely and thought-provoking article.
In Ortiz v. United States, 138 S. Ct. 2165 (2018) the majority described the military court-martial system—a commander-controlled process for adjudicating criminal complaints— as judicial in character. It reached this conclusion over Justice Alito’s dissent, which took a diametrically opposed view, describing the system as an Executive Branch entity that could not exercise judicial power. These opposing views are not new. They have been at the center of a debate about the fundamental nature of courts-martial for more than a century, and Congress, unlike the Supreme Court, legislates consistent with Justice Alito’s executive view. As a result of the Ortiz decision, however, the seam between Congress’s executive view and the Ortiz majority’s judicial view is now apparent, and it gives rise to a question about the constitutionality of the court-martial framework under the Uniform Code of Military Justice (UCMJ): does the current commander-controlled process comply with the requirements of due process? The answer to this question is especially relevant in today’s political environment where members of Congress, operating under an executive view of courts-martial, pressure senior military leaders to produce convictions in sexual assault cases. Therefore, this Article examines the due-process question, concluding there is an argument that the UCMJ’s court-martial framework may not meet constitutional muster. In reaching this conclusion it highlights the type of structural reform that is necessary to ensure due-process compliance.
As always, we thank the members of our Barry Writing Award committee–Phil Cave, Geoff Corn, J.P. Jones, and Eric Jensen–for their time and efforts in evaluating the submissions.