`(Slip Opinion)
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`
`
` OCTOBER TERM, 2017
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`
`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
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`
`
` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` ORTIZ v. UNITED STATES
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE ARMED FORCES
` No. 16–1423. Argued January 16, 2018—Decided June 22, 2018
`
`Congress has long provided for specialized military courts to adjudicate
`
`
`charges against service members. Today, courts-martial hear cases
`
`involving crimes unconnected with military service. They are also
`subject to several tiers of appellate review, and thus are part of an in-
`tegrated “court-martial system” that resembles civilian structures of
`
`justice. That system begins with the court-martial itself, a tribunal
`that determines guilt or innocence and levies punishment, up to life-
`time imprisonment or execution. The next phase occurs at one of four
`appellate courts: the Court of Criminal Appeals (CCA) for the Army,
`
`Navy-Marine Corps, Air Force, or Coast Guard. They review deci-
`
`sions where the sentence is a punitive discharge, incarceration for
`more than one year, or death. The Court of Appeals for the Armed
`
`Forces (CAAF) sits atop the court-martial system. The CAAF is a
`
`
`
`“court of record” composed of five civilian judges, 10 U. S. C. §941,
`which must review certain weighty cases and may review others. Fi-
`
`nally, 28 U. S. C. §1259 gives this Court jurisdiction to review the
`CAAF’s decisions by writ of certiorari.
`
`
`Petitioner Keanu Ortiz, an Airman First Class, was convicted by a
`
`court-martial of possessing and distributing child pornography, and
`he was sentenced to two years’ imprisonment and a dishonorable dis-
`charge. An Air Force CCA panel, including Colonel Martin Mitchell,
`affirmed that decision. The CAAF then granted Ortiz’s petition for
`
`review to consider whether Judge Mitchell was disqualified from
`
`serving on the CCA because he had been appointed to the Court of
`
`Military Commission Review (CMCR). The Secretary of Defense had
`initially put Judge Mitchell on the CMCR under his statutory author-
`ity to “assign [officers] who are appellate military judges” to serve on
`
`that court. 10 U. S. C. §950f(b)(2). To moot a possible constitutional
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`

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`2
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`ORTIZ v. UNITED STATES
`
`
`Syllabus
`
`problem with the assignment, the President (with the Senate’s advice
`
`and consent) also appointed Judge Mitchell to the CMCR pursuant to
`
`§950f(b)(3). Shortly thereafter, Judge Mitchell participated in Ortiz’s
`CCA appeal.
`
`
`Ortiz claimed that Judge Mitchell’s CMCR appointment barred his
`continued CCA service under both a statute and the Constitution.
`First, he argued that the appointment violated §973(b)(2)(A), which
`
`provides that unless “otherwise authorized by law,” an active-duty
`military officer “may not hold, or exercise the functions of,” certain
`“civil office[s]” in the federal government. Second, he argued that the
`Appointments Clause prohibits simultaneous service on the CMCR
`and the CCA. The CAAF rejected both grounds for ordering another
`
`appeal.
`Held:
`
`
`
`1. This Court has jurisdiction to review the CAAF’s decisions. The
`
`judicial character and constitutional pedigree of the court-martial
`system enable this Court, in exercising appellate jurisdiction, to re-
`view the decisions of the court sitting at its apex.
`An amicus curiae, Professor Aditya Bamzai, argues that cases de-
`
`
`cided by the CAAF do not fall within Article III’s grant of appellate
`
`
`jurisdiction to this Court. In Marbury v. Madison, 1 Cranch 137,
`
`Chief Justice Marshall explained that “the essential criterion of ap-
`
`
`pellate jurisdiction” is “that it revises and corrects the proceedings in
`
`a cause already instituted, and does not create that cause.” Id., at
`
`175. Here, Ortiz’s petition asks the Court to “revise and correct” the
`latest decision in a “cause” that began in and progressed through mil-
`itary justice “proceedings.” Unless Chief Justice Marshall’s test im-
`plicitly exempts cases instituted in a military court, the case is now
`appellate.
`
`There is no reason to make that distinction. The military justice
`
`system’s essential character is judicial. Military courts decide cases
`
`in strict accordance with a body of federal law and afford virtually
`the same procedural protections to service members as those given in
`
`a civilian criminal proceeding. The judgments a military tribunal
`
`renders “rest on the same basis, and are surrounded by the same
`considerations[, as] give conclusiveness to the judgments of other le-
`
`
`gal tribunals.” Ex parte Reed, 100 U. S. 13, 23. Accordingly, such
`judgments have res judicata and Double Jeopardy effect. The juris-
`diction and structure of the court-martial system likewise resemble
`those of other courts whose decisions this Court reviews. Courts-
`martial try service members for garden-variety crimes unrelated to
`
`military service, and can impose terms of imprisonment and capital
`
`
`punishment. Their decisions are also subject to an appellate process
`similar to the one found in most States. And just as important, the
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`3
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`Cite as: 585 U. S. ____ (2018)
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`
`Syllabus
`constitutional foundation of courts-martial is not in the least inse-
`
`
`cure. See Dynes v. Hoover, 20 How. 65, 79. The court-martial is older
`
`than the Constitution, was recognized and sanctioned by the Fram-
`
`ers, and has been authorized here since the first Congress. Through-
`out that history, courts-martial have operated as instruments of mili-
`tary justice, not mere military command. They are bound, like any
`court, by the fundamental principles of law and the duty to adjudi-
`
`cate cases without partiality.
`
`Bamzai argues that the Court lacks jurisdiction because the CAAF
`
`is not an Article III court, but is instead in the Executive Branch.
`This Court’s appellate jurisdiction, however, covers more than the de-
`
`cisions of Article III courts. This Court can review proceedings of
`
`
`state courts. See Martin v. Hunter’s Lessee, 1 Wheat. 304. It can also
`
`review certain non-Article III judicial systems created by Congress.
`In particular, the Court has upheld its exercise of appellate jurisdic-
`tion over decisions of non-Article III territorial courts, see United
`States v. Coe, 155 U. S. 76, and it has uncontroversially exercised ap-
`pellate jurisdiction over non-Article III District of Columbia courts,
`
`see Palmore v. United States, 411 U. S. 389. The non-Article III
`
`court-martial system stands on much the same footing as territorial
`and D. C. courts. All three rest on an expansive constitutional dele-
`
`
`gation, have deep historical roots, and perform an inherently judicial
`role. Thus, in Palmore, this Court viewed the military, territories,
`
`
`
`and District as “specialized areas having particularized needs” in
`which Article III “give[s] way to accommodate plenary grants of pow-
`
`er to Congress.” Id., at 408.
`
`
`Bamzai does not provide a sufficient reason to divorce military
`
`courts from territorial and D. C. courts when it comes to defining this
`
`Court’s appellate jurisdiction. He first relies on the fact that territo-
`
`rial and D. C. courts exercise power over discrete geographic areas,
`
`
`while military courts do not. But this distinction does not matter to
`
`the jurisdictional inquiry. His second argument focuses on the fact
`that the CAAF is in the Executive Branch. In his view, two of the
`Court’s precedents—Ex parte Vallandigham, 1 Wall. 243, and Mar-
`
`bury, 1 Cranch 137—show that the Court may never accept appellate
`jurisdiction from any person or body within that branch. As to Val-
`landigham, that case goes to show only that not every military tribu-
`nal is alike. Unlike the military commission in Vallandigham, which
`
`lacked “judicial character,” 1 Wall., at 253, the CAAF is a permanent
`
`court of record established by Congress, and its decisions are final
`
`unless the Court reviews and reverses them. As to Marbury, James
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`Madison’s failure to transmit William Marbury’s commission was not
`a judicial decision by a court. Here, by contrast, three constitutional-
`
`ly rooted courts rendered inherently judicial decisions. Pp. 5–19.
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`

`4
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`
`ORTIZ v. UNITED STATES
`
`
`Syllabus
`
`
`2. Judge Mitchell’s simultaneous service on the CCA and the
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`CMCR violated neither §973(b)(2)(A) nor the Appointments Clause.
`Pp. 19–25.
`
`
`(a) The statutory issue turns on two interlocking provisions. Sec-
`
`tion 973(b)(2)(A) is the statute that Ortiz claims was violated here. It
`prohibits military officers from “hold[ing], or exercis[ing] the func-
`tions of,” certain “civil office[s]” in the federal government, “[e]xcept
`as otherwise authorized by law.” Section 950f(b) is the statute that
`the Government claims “otherwise authorize[s]” Judge Mitchell’s
`
`CMCR service, even if a seat on that court is a covered “civil office.”
`
`It provides two ways to become a CMCR judge. Under §950f(b)(2),
`the Secretary of Defense “may assign” qualified officers serving on a
`CCA to be judges on the CMCR. Under §950f(b)(3), the President
`(with the Senate’s advice and consent) “may appoint” persons—
`whether officers or civilians is unspecified—to CMCR judgeships.
`
`
`Ortiz argues that Judge Mitchell was not “authorized by law” to
`serve on the CMCR after his appointment because §950f(b)(3) makes
`no express reference to military officers. In the circumstances here,
`
`however, the express authorization to assign military officers to the
`CMCR under §950f(b)(2) was the only thing necessary to exempt
`Judge Mitchell from §973(b)(2)(A). Once the Secretary of Defense
`
`placed Judge Mitchell on the CMCR pursuant to §950f(b)(2), the
`President’s later appointment made no difference. It did not negate
`
`the Secretary’s earlier action, but rather ratified what the Secretary
`had already done. Thus, after the appointment, Judge Mitchell
`
`served on the CMCR by virtue of both the Secretary’s assignment and
`the President’s appointment. And because §950f(b)(2) expressly au-
`thorized the Secretary’s assignment, Judge Mitchell’s CMCR service
`
`could not run afoul of §973(b)(2)(A)’s general rule. Pp. 20–23.
`
`
`(b) Ortiz also raises an Appointments Clause challenge to Judge
`
`Mitchell’s simultaneous service on the CCA and the CMCR. That
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`Clause distinguishes between principal officers and inferior officers.
`CCA judges are inferior officers. Ortiz views CMCR judges as princi-
`
`pal officers. And Ortiz argues that, under the Appointments Clause,
`
`
`a single judge cannot serve as an inferior officer on one court and a
`principal officer on another. But the Court has never read the Ap-
`
`pointments Clause to impose rules about dual service, separate and
`distinct from methods of appointment. And if the Court were ever to
`apply the Clause to dual-officeholding, it would not start here. Ortiz
`
`does not show how Judge Mitchell’s CMCR service would result in
`“undue influence” on his CCA colleagues. Pp. 23–25.
`76 M. J. 125 and 189, affirmed.
`KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
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`Cite as: 585 U. S. ____ (2018)
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`Syllabus
`C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, and SOTOMAYOR, JJ.,
`joined. THOMAS, J., filed a concurring opinion. ALITO, J., filed a dis-
`senting opinion, in which GORSUCH, J., joined.
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`5
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` Cite as: 585 U. S. ____ (2018)
`
`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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`
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 16–1423
`_________________
` KEANU D. W. ORTIZ, PETITIONER v. UNITED STATES
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE ARMED FORCES
`
`[June 22, 2018]
`
`JUSTICE KAGAN delivered the opinion of the Court.
`This case is about the legality of a military officer serv-
`
`ing as a judge on both an Air Force appeals court and the
`Court of Military Commission Review (CMCR). The peti-
`tioner, an airman convicted of crimes in the military jus-
`tice system, contends that the judge’s holding of dual
`offices violated a statute regulating military service, as
`
`well as the Constitution’s Appointments Clause. The
`Court of Appeals for the Armed Forces (CAAF) rejected
`
`those claims, and we granted a petition for certiorari. We
`
`hold first that this Court has jurisdiction to review deci-
`sions of the CAAF, even though it is not an Article III
`court. We then affirm the CAAF’s determination that the
`
`judge’s simultaneous service was lawful.
`I
`In the exercise of its authority over the armed forces,
`
`Congress has long provided for specialized military courts
`
`to adjudicate charges against service members. Today,
`trial-level courts-martial hear cases involving a wide
`range of offenses, including crimes unconnected with
`
`military service; as a result, the jurisdiction of those tri-
`bunals overlaps substantially with that of state and federal
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`

`

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` ORTIZ v. UNITED STATES
`
`Opinion of the Court
` courts. See Solorio v. United States, 483 U. S. 435, 436
`
`(1987); United States v. Kebodeaux, 570 U. S. 387, 404
`(2013) (ALITO, J., concurring in judgment). And courts-
`
`
`martial are now subject to several tiers of appellate re-
`
`view, thus forming part of an integrated “court-martial
`system” that closely resembles civilian structures of jus-
`tice. United States v. Denedo, 556 U. S. 904, 920 (2009);
`
`see Weiss v. United States, 510 U. S. 163, 174 (1994).
`
`That system begins with the court-martial itself, an
`officer-led tribunal convened to determine guilt or inno-
`cence and levy appropriate punishment, up to lifetime
`
`imprisonment or execution. See 10 U. S. C. §§816, 818,
`
`856a. The next phase of military justice occurs at one of
`
`four appellate courts: the Court of Criminal Appeals (CCA)
`
`for the Army, Navy-Marine Corps, Air Force, or Coast
`Guard. Those courts, using three-judge panels of either
`
`officers or civilians, review all decisions in which the
`sentence imposed involves a punitive discharge, incarcera-
`
`tion for more than one year, or death. See §§866(a)–(c).
`Atop the court-martial system is the CAAF, a “court of
`
`record” made up of five civilian judges appointed to serve
`
`15-year terms. §941; see §§942(a)–(b). The CAAF must
`review certain weighty cases (including those in which
`
`capital punishment was imposed), and may grant petitions
`for review in any others. See §867. Finally, this Court
`possesses statutory authority to step in afterward: Under
`28 U. S. C. §1259, we have jurisdiction to review the
`CAAF’s decisions by writ of certiorari.
`
`
`Petitioner Keanu Ortiz’s case has run the gamut of this
`
`legal system. Ortiz, an Airman First Class in the Air
`Force, was charged with knowingly possessing and dis-
`tributing child pornography, in violation of the Uniform
`Code of Military Justice. A court-martial found Ortiz
`guilty as charged and imposed a sentence of two years’
`imprisonment and a dishonorable discharge. On appeal,
`an Air Force CCA panel, including Colonel Martin Mitch-
`
`2
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`

`3
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`Cite as: 585 U. S. ____ (2018)
`
`Opinion of the Court
`ell, summarily affirmed the court-martial’s decision. The
`CAAF then granted Ortiz’s petition for review to consider
`whether Judge Mitchell was disqualified from serving on
`the CCA, thus entitling Ortiz to an appellate do-over.
`
`
`That issue arose from Judge Mitchell’s simultaneous
`service on the CMCR. Congress created the CMCR as an
`appellate tribunal to review the decisions of military
`commissions, particularly those operating in Guantanamo
`
`Bay.1 The Secretary of Defense put Judge Mitchell on that
`
`court shortly after he became a member of the CCA, under
`
`a statutory provision authorizing the Secretary to “assign
`
`[officers] who are appellate military judges” to serve on
`the CMCR as well. 10 U. S. C. §950f(b)(2). Around the
`same time, a military-commission defendant argued to the
`Court of Appeals for the D. C. Circuit that the Appoint-
`ments Clause requires the President and Senate (rather
`
`than the Secretary) to place judges on the CMCR. The
`D. C. Circuit avoided resolving that issue, but suggested
`
`that the President and Senate could “put [it] to rest” by
`
`
`appointing the very CMCR judges whom the Secretary
`
`had previously assigned. In re al-Nashiri, 791 F. 3d 71, 86
`
`(2015). The President decided to take that advice, and
`nominated each of those judges—Mitchell, among them—
`
`under an adjacent statutory provision authorizing him to
`“appoint, by and with the advice and consent of the Sen-
`ate,” CMCR judges. §950f(b)(3). The Senate then con-
`
`
`firmed those nominations. About a month later, Judge
`Mitchell—now wearing his CCA robe—participated in the
`panel decision rejecting Ortiz’s appeal.
`
`In Ortiz’s view, Judge Mitchell’s appointment to the
`CMCR barred his continued service on the CCA under
`——————
`1In contrast to courts-martial, military commissions have historically
`
`
` been used to substitute for civilian courts in times of martial law or
`temporary military government, as well as to try members of enemy
`
`
` forces for violations of the laws of war. See Hamdan v. Rumsfeld, 548
`U. S. 557, 595–597 (2006) (plurality opinion).
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`

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`
` ORTIZ v. UNITED STATES
`
`Opinion of the Court
`
` both a statute and the Constitution. First, Ortiz invoked
`
`
` 10 U. S. C. §973(b). That statute, designed to ensure
`civilian preeminence in government, provides that unless
`
`“otherwise authorized by law,” an active-duty military
`officer like Judge Mitchell “may not hold, or exercise the
`functions of,” certain “civil office[s]” in the Federal Gov-
`ernment. §973(b)(2)(A). According to Ortiz, a CMCR
`judgeship is a covered civil office, and no other law allowed
`the President to put Mitchell in that position: Thus, his
`
`appointment to the CMCR violated §973(b). See Brief in
`
`Support of Petition Granted in No. 16–0671 (CAAF),
`pp. 17–22. And the proper remedy, Ortiz argued, was to
`terminate Judge Mitchell’s military service effective the
`date of his CMCR appointment and void all his later ac-
`tions as a CCA judge—including his decision on Ortiz’s
`appeal. See ibid. Second and independently, Ortiz relied
`on the Appointments Clause to challenge Judge Mitchell’s
`dual service. See id., at 27–40. The premise of his argu-
` ment was that CMCR judges are “principal officers” under
`
`
`that Clause, whereas CCA judges (as this Court has held)
`
`
`
` are “inferior officers.” Edmond v. United States, 520 U. S.
`
`651, 666 (1997). Ortiz claimed that the Appointments
`
`Clause prohibits someone serving as a principal officer on
`
` one court (the CMCR) from sitting alongside inferior
` officers on another court (the CCA). Because Judge Mitch-
`
`
`
`ell had done just that, Ortiz concluded, the CCA’s ruling on
`his appeal could not stand.
`
`The CAAF rejected both grounds for ordering another
`appeal. See 76 M. J. 189 (2017). In considering the statu-
`tory question, the court chose not to decide whether
`§973(b) precluded Judge Mitchell from serving on the
` CMCR while an active-duty officer. Even if so, the CAAF
`
`held, the remedy for the violation would not involve ter-
`minating the judge’s military service or voiding actions he
`took on the CCA. See id., at 192. Turning next to the
`
`constitutional issue, the CAAF “s[aw] no Appointments
`
`4
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`

`5
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`Cite as: 585 U. S. ____ (2018)
`
`Opinion of the Court
`Id., at 193. Even assuming Judge
`Clause problem.”
`
`Mitchell was a principal officer when sitting on the CMCR,
`the court held, that status in no way affected his service
`
`on the CCA: “When Colonel Mitchell sits as a CCA
`judge, he is no different from any other CCA judge.” Ibid.
`
`The CAAF thus upheld the CCA’s affirmance of Ortiz’s
`convictions.
`
`
`
`This Court granted Ortiz’s petition for certiorari to
`
`consider whether either §973(b) or the Appointments
`
`Clause prevents a military officer from serving, as Judge
`
`Mitchell did, on both a CCA and the CMCR. 582 U. S. ___
`
`(2017). We now affirm the decision below.2
`II
`
`We begin with a question of our own jurisdiction to
`
`review the CAAF’s decisions. Congress has explicitly
`authorized us to undertake such review in 28 U. S. C.
`§1259. See ibid. (“Decisions of the [CAAF] may be re-
`viewed by the Supreme Court by writ of certiorari”). Both
`the Federal Government and Ortiz view that grant of
`jurisdiction as constitutionally proper. But an amicus
`curiae, Professor Aditya Bamzai, argues that it goes be-
`yond what Article III allows. That position is a new one to
`
`
`this Court: We have previously reviewed nine CAAF deci-
`sions without anyone objecting that we lacked the power
`
`to do so.3 Still, we think the argument is serious, and
`
`
`——————
`2At the same time we issued a writ of certiorari in this case, we
`
` granted and consolidated petitions in two related cases—Dalmazzi v.
`
` United States, No. 16–961, and Cox v. United States, No. 16–1017.
`Those cases raise issues of statutory jurisdiction that our disposition
`today makes it unnecessary to resolve. We accordingly dismiss
`
`Dalmazzi, post, p. ___, and Cox, post, p. ___, as improvidently granted
`
`
`in opinions accompanying this decision.
`3See United States v. Denedo, 556 U. S. 904 (2009); Clinton v. Gold-
`
`
`smith, 526 U. S. 529 (1999); United States v. Scheffer, 523 U. S. 303
`(1998); Edmond v. United States, 520 U. S. 651 (1997); Loving v. United
`
`
`States, 517 U. S. 748 (1996); Ryder v. United States, 515 U. S. 177
`
`
`
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`

`

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`6
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`ORTIZ v. UNITED STATES
`
`Opinion of the Court
`deserving of sustained consideration. That analysis leads
`us to conclude that the judicial character and constitu-
`tional pedigree of the court-martial system enable this
`
`Court, in exercising appellate jurisdiction, to review the
`decisions of the court sitting at its apex.
`Bamzai starts with a proposition no one can contest—
`
`that our review of CAAF decisions cannot rest on our
`original jurisdiction. Brief for Aditya Bamzai as Amicus
`Curiae 11. Article III of the Constitution grants this
`Court original jurisdiction in a limited category of cases:
`
`those “affecting Ambassadors, other public Ministers and
`Consuls, and those in which a State shall be Party.” §2,
`cl. 2. That list, of course, does not embrace Ortiz’s case, or
`any other that the CAAF considers. And ever since Mar-
`bury v. Madison, 1 Cranch 137 (1803), this Court has
`
`recognized that our original jurisdiction cannot extend any
`further than the cases enumerated: If Congress attempts
`to confer more on us, we must (as Chief Justice Marshall
`famously did, in the pioneer act of judicial review) strike
`
`down the law. Id., at 174–180. As a result, Bamzai is
`
`right to insist that §1259 could not authorize this Court,
`
`as part of its original jurisdiction, to hear military cases
`
`like Ortiz’s.
`The real issue is whether our appellate jurisdiction can
`
`
`cover such cases. Article III’s sole reference to appellate
`
`jurisdiction provides no apparent barrier, but also no
`substantial guidance: Following its specification of this
`Court’s original jurisdiction, Article III says only that in
`all “other Cases” that the Constitution comprehends (in-
`cluding cases, like this one, involving federal questions),
`
`“the supreme Court shall have appellate Jurisdiction, both
`
`as to Law and Fact.” §2, cl. 2. The Constitution’s failure
`
`——————
`(1995); Davis v. United States, 512 U. S. 452 (1994); Weiss v. United
`
`
` States, 510 U. S. 163 (1994); Solorio v. United States, 483 U. S. 435
`(1987).
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`

`7
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`Cite as: 585 U. S. ____ (2018)
`
`Opinion of the Court
`to say anything more about appellate jurisdiction leads
`
`Bamzai to focus on Chief Justice Marshall’s opinion in
`Marbury. See Brief for Bamzai 2–4, 12–14. In that case
`
`(as you surely recall), William Marbury petitioned this
`Court—without first asking any other—to issue a writ of
`mandamus to Secretary of State James Madison directing
`him to deliver a commission. After holding (as just related)
`that the Court’s original jurisdiction did not extend so far,
`Chief Justice Marshall also rejected the idea that the
`
`Court could provide the writ in the exercise of its appellate
`jurisdiction. “[T]he essential criterion of appellate juris-
`diction,” the Chief Justice explained, is “that it revises and
`
`corrects the proceedings in a cause already instituted, and
`does not create that cause.” 1 Cranch, at 175. Marbury’s
`
`petition, Chief Justice Marshall held, commenced the
`cause—or, to use the more modern word, the case; hence,
`
`it was not a matter for appellate jurisdiction. Bamzai
`
`contends that the same is true of Ortiz’s petition.
`On any ordinary understanding of the great Chief Jus-
`
`tice’s words, that is a surprising claim. Ortiz’s petition
`asks us to “revise and correct” the latest decision in a
`“cause” that began in and progressed through military
`
`justice “proceedings.” Ibid. Or, as the Government puts
`the point, this case fits within Chief Justice Marshall’s
`
`standard because “it comes to th[is] Court on review of the
`Court of Appeals for the Armed Forces’ decision, which
`reviewed a criminal proceeding that originated in [a]
`court[]-martial.” Tr. of Oral Arg. 47–48. So this Court
`would hardly be the first to render a decision in the case.
`Unless Chief Justice Marshall’s test implicitly exempts
`cases instituted in a military court—as contrasted, for
`example, with an ordinary federal court—the case is now
`
`appellate.4
`——————
`4 The dissent asserts that, in setting out that test, we have “basically
`
`
` proceed[ed] as though Marbury were our last word on the subject” and
`
`
`
`
`
`
`
`
`
`
`
`

`

`8
`
`
`
`
`ORTIZ v. UNITED STATES
`
`Opinion of the Court
`The military justice system’s essential character—in a
`
`word, judicial—provides no reason to make that distinc-
` tion. Accord post, at 6–8 (THOMAS, J., concurring). Each
`
`
`
`level of military court decides criminal “cases” as that
`term is generally understood, and does so in strict accord-
`ance with a body of federal law (of course including the
`Constitution). The procedural protections afforded to a
`service member are “virtually the same” as those given in
`a civilian criminal proceeding, whether state or federal. 1
`
`D. Schlueter, Military Criminal Justice: Practice and
`Procedure §1–7, p. 50 (9th ed. 2015) (Schlueter). And the
`
`judgments a military tribunal renders, as this Court long
`ago observed, “rest on the same basis, and are surrounded
`by the same considerations[, as] give conclusiveness to the
`judgments of other legal tribunals.” Ex parte Reed, 100
`U. S. 13, 23 (1879). Accordingly, we have held that the
`
` “valid, final judgments of military courts, like those of any
`
`court of competent jurisdiction[,] have res judicata effect
`
` and preclude further litigation of the merits.” Schlesinger
`
`
`v. Councilman, 420 U. S. 738, 746 (1975). In particular,
`those judgments have identical effect under the Double
`Jeopardy Clause. See Grafton v. United States, 206 U. S.
`
`——————
`overlooked “two centuries of precedent.” Post, at 8 (opinion of ALITO,
`
`
`J.). But the cases the dissent faults us for failing to cite stand for the
`same principle that we—and more important, Marbury—already set
`
`out. They too say that our appellate jurisdiction permits us to review
`only prior judicial decisions, rendered by courts. See, e.g., Ex parte
`
`Yerger, 8 Wall. 85, 97 (1869) (Our “appellate jurisdiction” may “be
`exercised only in the revision of judicial decisions”); The Alicia, 7 Wall.
`
`571, 573 (1869) (“[A]n appellate jurisdiction necessarily implies some
`
`judicial determination . . . of an inferior tribunal, from which an appeal
`
`has been taken”); Cohens v. Virginia, 6 Wheat. 264, 396 (1821) (In
`exercising appellate jurisdiction, we act as a “supervising Court, whose
`peculiar province it is to correct the errors of an inferior Court”); Ex
`parte Bollman, 4 Cranch 75, 101 (1807) (We exercise “appellate juris-
`
`diction” in “revisi[ng] a decision of an inferior court”); post, at 4–6, 10,
`12. Marbury, then, remains the key precedent.
`
`
`
`

`

`
`
`
`
` Cite as: 585 U. S. ____ (2018)
`
`Opinion of the Court
`
`9
`
`333, 345 (1907).
`
`
`The jurisdiction and structure of the court-martial
`system likewise resemble those of other courts whose
`decisions we review. Although their jurisdiction has
`
`waxed and waned over time, courts-martial today can try
`service members for a vast swath of offenses, including
`
`garden-variety crimes unrelated to military service. See
`
`
`10 U. S. C. §§877–934; Solorio, 483 U. S., at 438–441;
`supra, at 1–2. As a result, the jurisdiction of those tribu-
`nals overlaps significantly with the criminal jurisdiction of
`federal and state courts. See Kebodeaux, 570 U. S., at 404
` (ALITO, J., concurring in judgment). The sentences meted
`
`
`out are also similar: Courts-martial can impose, on top of
`
`peculiarly military discipline, terms of imprisonment and
`capital punishment. See §818(a); post, at 6 (THOMAS, J.,
`
`
`
`concurring) (“[T]hese courts decide questions of the most
`
`momentous description, affecting even life itself” (quota-
`tion marks and ellipses omitted)). And the decisions of
`
`those tribunals are subject to an appellate process—what
`
`we have called an “integrated system of military courts
`and review procedures”—that replicates the judicial appa-
`
`ratus found in most States. Councilman, 420 U. S., at
`758. By the time a case like Ortiz’s arrives on our door-
`step under 28 U. S. C. §1259, it has passed through not
`one or two but three military courts (including two that
`can have civilian judges).
`
`And just as important, the constitutional foundation of
`courts-martial—as judicial bodies responsible for “the trial
`and punishment” of service members—is not in the least
`insecure. Dynes v. Hoover, 20 How. 65, 79 (1858). The
`
`court-martial is in fact “older than the Constitution,” 1
`
`Schlueter §1–6(B), at 39; the Federalist Papers discuss
`“trials by courts-martial” under the Articles of Confedera-
`tion, see No. 40, p. 250 (C. Rossiter ed. 1961). When it
`came time to draft a new charter, the Framers “recog-
`ni[zed] and sanction[ed] existing military jurisdiction,” W.
`
`
`
`
`
`
`

`

`
`
` ORTIZ v. UNITED STATES
`
`Opinion of the Court
`Winthrop, Military Law and Precedents 48 (2d ed. 1920)
`(emphasis deleted), by exempting from the Fifth Amend-
`ment’s Grand Jury Clause all “cases arising in the land or
`naval forces.” And by granting legislative power “[t]o
`
`make Rules for the Government and Regulation of the
`land and naval Forces,” the Framers also authorized
`
`Congress to carry forward courts-martial. Art. I, §8, cl. 14.
`
`Congress did not need to be told twice. The very first
`Congress continued the court-martial system as it then
`operated. See Winthrop, supra, at 47. And from that day
`to this one, Congress has maintained courts-martial in all
`
`their essentials to resolve criminal charges against service
`members. See 1 Schlueter §1–6, at 35–48.
`
`Throughout that history, and reflecting the attributes
`described above, courts-martial have operated as instru-
`ments of military justice, not (as the dissent would have it)
`mere “military command,” post, at 18 (opinion of ALITO,
`
`J.). As one scholar has noted, courts-martial “have long
`
`been understood to exercise ‘judicial’ power,” of the same
`
`kind wielded by civilian courts. Nelson, Adjudication in
`
`the Political Branches, 107 Colum. L. Rev. 559, 576 (2007);
`see W. De Hart, Observations on Military Law 14 (1859)
`(Military courts are “imbued or endowed with the like
`
`essence of judicial power” as “ordinary courts of civil judi-
`
`cature”); accord post, at 6–8 (THOMAS, J., concurring).
`
`Attorney General Bates, even in the middle of the Civil
`
`War, characterized a court-martial “proceeding, from its
`inceptio