Please Don’t Call CoMA “CAAF’s Predecessor Court”

Would you call Lew Alcindor “Kareem Abdul-Jabbar’s predecessor person”? If not (and gosh I hope you wouldn’t), then please don’t call CoMA “CAAF’s predecessor court.”

The United States Court of Appeals for the Armed Forces has had three names during its 74 years of operation. Like expecting parents anguishing over what to name their child (been there, done that), the UCMJ’s framers debated the best appellation for the new civilian high court they created for the military justice system. Uniform Code of Military Justice, Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong. 673, 1276-78 (1949). Suggestions included “the Judicial Council,” “the Supreme Court of Military Appeals,” and “Military Court of Appeals.” They finally christened the bouncing baby judicial body the “Court of Military Appeals.” Uniform Code of Military Justice art. 67(a)(1), Pub. L. No. 81-506, 64 Stat. 107, 129 (1950).

From the outset, CoMA made an addition to its name. Rule 1 of the court’s inaugural Rules of Practice and Procedure announced, “The Court adopts ‘United States Court of Military Appeals’ as the title of the Court.” C.M.A. R. 1, 1 C.M.A. xxiii. In 1968, that appellation became official when President Lyndon Baines Johnson signed into law a standalone statute changing CoMA’s name to the “United States Court of Military Appeals.” Act of June 15, 1968, Pub. L. No. 90-340, 82 Stat. 178 (1968). The statute explained that the United States Court of Military Appeals “is a continuation of the Court of Military Appeals as it existed prior to the effective date of this Act.” Id. at § 2, 82 Stat. at 178-79. In other words, same court, new name.

The National Defense Authorization Act for Fiscal Year 1995 included a section titled, “RENAMING OF THE COURT OF MILITARY APPEALS.” Pub. L. No. 103-337, § 924, 108 Stat. 2663, 2831 (1994). The statute provided that the “United States Court of Military Appeals shall hereafter be known and designated as the United States Court of Appeals for the Armed Forces.” Id., § 924(a)(1), 108 Stat. at 2831. In other words, same court, new name.

Significantly, the judges serving at the time of the moniker modification considered the renamed court to be the same judicial entity as CoMA. In their first opinion issued under the altered appellation, CAAF’s judges repeatedly referred to caselaw from the C.M.A./U.S.C.M.A. era as decisions of “this Court.” United States v. Loving, 41 M.J. 213, 236, 252, 272, 280, 290 (C.A.A.F. 1994), aff’d, 517 U.S. 748 (1996) (referring to “precedents of this Court,” “this Court’s previous cases,” “our decision in United States v. Teters, 37 M.J. 370 (CMA 1993),” “[t]he words of this Court in United States v. Teeter[, 16 M.J. 68 (C.M.A. 1983)],” and “guidance from this Court in United States v. Curtis, 33 M.J. 101 [C.M.A. 1991]”); id. at 303, 304, 309 (Sullivan, C.J., concurring) (referring to “the decision of this Court in United States v. Smith, 27 M.J. 242 (1988),” “Former Chief Judge Everett . . . opined for this Court,” “this Court has held,” “this Court’s holding in United States v. McClain, 22 M.J. 124 (1986)”); id. at 311 (Wiss, J., dissenting) (stating “[t]his Court first considered whether the sentencing scheme for capital cases in the military justice system passed constitutional muster in United States v. Matthews, 16 M.J. 354 (1983),” and “[t]he chaos continued in this Court” (referring to changes of counsel in the case in 1992). Similar examples abound. E.g., United States v. Batchelder, 41 M.J. 337, 338 (C.A.A.F. 1994) (referring to “our opinion in United States v. Howard, 20 M.J. 353 (C.M.A. 1985)”); United States v. Martinsmith, 41 M.J. 343, 344 (C.A.A.F. 1995) (“This Court granted review on November 24, 1993”); United States v. Cornelious, 41 M.J. 397, 398 (C.A.A.F. 1995) (referring to “our decision” in United States v. Carter, 40 M.J. 102 (C.M.A. 1994)).

It was not until 2011 that a CAAF opinion included a reference to the Court of Military Appeals or United States Court of Military Appeals as CAAF’s “predecessor.” United States v. Pope, 69 M.J. 328, 336 (C.A.A.F. 2011) (Stucky, J., concurring) (referring to “this Court’s predecessor” when discussing a 1985 U.S.C.M.A. opinion).

Kareem Abdul-Jabbar is the same person as Lew Alcindor. And the United States Court of Appeals for the Armed Forces is the same court as the Court of Military Appeals and United States Court of Military Appeals. Calling either of the latter CAAF’s “predecessor court” is a technical foul.

DWIGHT H. SULLIVAN

Author: Dwight Sullivan is a senior counsel at the Air Force Appellate Defense Division and a professorial lecturer in law at the George Washington University Law School. The views expressed in this guest rant are those of the author and do not necessarily reflect the views of the Department of Defense or any of its components.