Miller v. United States (update)

Miller has now filed a reply to the SG. Petitioner argues that the new argument, not made before CAAF is that the Sixth doesn't apply to a court-martial. This retrograde argument would take us back decades to a rougher form of justice. Goodness, what will they argue next, no Fifth, no Fourth, and no Eighth--ooh, bring back the plank, let's give new meaning to "swim call" while on cruise. 

[T]he government’s main basis for opposing certiorari is an argument it did not make below—that the Sixth Amendment doesn’t apply to courts-martial at all. BIO 5–7. This argument squarely conflicts with a half-century of CAAF precedent. See, e.g., United States v. Hershey, 20 M.J. 433, 435–36 (C.M.A. 1985); United States v. Grunden, 2 M.J. 116, 120 (C.M.A. 1977). And in the specific context of the Public Trial Clause, it runs headlong into the deeply rooted
historical tradition of public courts-martial. See Pet. 7 (citing WILLIAM W INTHROP, MILITARY LAW AND PRECEDENTS 161–62 (2d ed. 1920)). In any event, the government’s new argument is a reason to grant certiorari, not to deny it. The Sixth Amendment’s applicability to courts-martial is a cert-worthy constitutional question all its own, and it would be grossly unfair to allow the government to repeatedly litigate the scope of the Sixth Amendment within the military justice system, only to regularly oppose certiorari by denying that it applies at all.

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After CAAF decided United States v. Miller, 86 M.J. 188 (CAAF 2025), a petition for a writ of certiorari was filed (link).

The SG has now filed an opposition in No. 25-999. You can follow the case at this link.

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Lookout No. 1.

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