Weiss v. United States

• Citation: 510 U.S. 163
• Decision Date: 19 January 1994
• Docket Number: No. 92-1482.,92-1482.
• Parties: WEISS <I>v.</I> UNITED STATES
• Court: United States Supreme Court

510 U.S. 163

WEISS

v. UNITED STATES

No. 92-1482.

Supreme Court of United States.

Argued November 3, 1993.

Decided January 19, 1994.^*

After courts-martial sentenced petitioners Weiss and Hernandez, United States Marines, on their pleas of guilty to offenses under the Uniform Code of Military Justice (UCMJ), their convictions were affirmed by the Navy-Marine Corps Court of Military Review in separate appeals. In affirming Weiss' conviction, the Court of Military Appeals rejected his contentions, first, that military trial and appellate judges have no authority to convict because the method of their appointment by the various Judge Advocates General under the UCMJ violates the Appointments Clause, U. S. Const., Art. II, § 2, cl. 2, and, second, that such judges' lack of a fixed term of office violates the Fifth Amendment's Due Process Clause. Based on this decision, the court summarily affirmed Hernandez' conviction.

Held:

1. The current method of appointing military judges does not violate the Appointments Clause, which, inter alia, requires the President to appoint "Officers of the United States" with the advice and consent of the Senate. All of the military judges involved in these cases were already commissioned military officers when they were assigned to serve as judges, and thus they had already been appointed pursuant to the Clause. The position of military judge is not so different from other positions to which an officer may be assigned that Congress has by implication required a second appointment under the Clause before the officer may discharge judicial duties. The fact that the UCMJ requires military judges to possess certain qualifications, including membership in a state or federal bar, does not in itself indicate a congressional intent to create a separate office, since special qualifications are needed to fill a host of military positions. Moreover, the UCMJ's explicit and exclusive treatment of military judges as officers who must be "detailed" or "assigned" by a superior officer is quite different from Congress' treatment of a number of top-level positions in the military hierarchy, such as Chairman of the Joint Chiefs of Staff, for which a second appointment under the Clause is expressly required. Nor does the Clause by its own force require a second appointment. Buckley v. Valeo, 424 U. S. 1, and subsequent decisions simply do not speak to this question. The present case is also distinguishable from Shoemaker v. United States, 147 U. S. 282. Even assuming, arguendo, that the "germaneness" principle set forth in Shoemaker, id., at 300-301, applies to the present situation, no second appointment is necessary because the role of military judge is "germane" to that of military officer: By contrast to civilian society, non-judicial military officers play a significant part in the administration of military justice; and, by the same token, the position of military judge is less distinct from other military positions than the office of full-time civilian judge is from other offices in civilian society. Pp. 169-176.

2. The lack of a fixed term of office for military judges does not violate the Due Process Clause. Neither Mathews v. Eldridge, 424 U. S. 319, nor Medina v. California, 505 U. S. 437, provides a due process analysis that is appropriate to the military context, in which judicial deference to Congress' determinations is at its apogee. Rather, the appropriate standard is that found in Middendorf v. Henry, 425 U. S. 25, 44: whether the factors militating in favor of fixed terms are so extraordinarily weighty as to overcome the balance struck by Congress. The historical fact that military judges in the Anglo-American system have never had tenure is a factor that must be weighed in this calculation. Moreover, the applicable provisions of the UCMJ, and corresponding regulations, sufficiently insulate military judges from the effects of command influence. Thus, since neither history nor current practice supports petitioners' assumption that a military judge who does not have a fixed term lacks the independence necessary to ensure impartiality, petitioners have fallen far short of satisfying the applicable standard. Pp. 176-181.

36 M. J. 224 and 37 M. J. 252, affirmed.

REHNQUIST, C. J., delivered the opinion of the Court, in which BLACKMUN, STEVENS, O'CONNOR, KENNEDY, SOUTER, and GINSBURG, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Parts I and II-A. SOUTER, J., filed a concurring opinion, post, p. 182. GINSBURG, J., filed a concurring opinion, post, p. 194. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined, post, p. 195.

CERTIORARI TO THE UNITED STATES COURT OF MILITARY APPEALS.

Alan B. Morrison argued the cause for petitioners. With him on the briefs were Philip D. Cave, Dwight H. Sullivan, Eugene R. Fidell, and Ronald W. Meister.

Solicitor General Days argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Keeney, Deputy Solicitor General Bryson, Paul J. Larkin, Jr., Thomas E. Booth, Theodore G. Hess, and Albert Diaz.^†

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

We must decide in these cases whether the current method of appointing military judges violates the Appointments Clause of the Constitution, and whether the lack of a fixed term of office for military judges violates the Fifth Amendment's Due Process Clause. We conclude that neither constitutional provision is violated.

Petitioner Weiss, a United States Marine, pleaded guilty at a special court-martial to one count of larceny, in violation of Article 121 of the Uniform Code of Military Justice (UCMJ or Code), 10 U. S. C. § 921. He was sentenced to three months of confinement, partial forfeiture of pay, and a bad-conduct discharge. Petitioner Hernandez, also a Marine, pleaded guilty to the possession, importation, and distribution of cocaine, in violation of Article 112a, UCMJ, 10 U. S. C. § 912a, and conspiracy, in violation of Article 81, UCMJ, 10 U. S. C. § 881. He was sentenced to 25 years of confinement, forfeiture of all pay, a reduction in rank, and a dishonorable discharge. The convening authority reduced Hernandez' sentence to 20 years of confinement.

The Navy-Marine Corps Court of Military Review, in separate appeals, affirmed petitioners' convictions. The Court of Military Appeals granted plenary review in petitioner Weiss' case to address his contention that the judges in his case had no authority to convict him because their appointments violated the Appointments Clause, and their lack of a fixed term of office violated the Due Process Clause. Relying on its recent decision in United States v. Graf, 35 M. J. 450 (1992), cert. pending, No. 92-1102, in which the court unanimously held that due process does not require military judges to have a fixed term of office, the court rejected Weiss' due process argument. 36 M. J. 224, 235, n. 1 (1992). In a splintered decision, the court also rejected petitioner's Appointments Clause challenge.

Two of the five judges concluded that the initial appointment of military trial and appellate judges as commissioned officers is sufficient to satisfy the Appointments Clause. Id., at 225-234 (plurality opinion). A separate appointment before taking on the duties of a military judge is unnecessary, according to the plurality, in part because the duties of a judge in the military justice system are germane to the duties that military officers already discharge. Ibid. One judge concurred in the result only, concluding that the Appointments Clause does not apply to the military. Id., at 234-240 (opinion of Crawford, J.). The other two judges dissented separately. Both stressed the significant changes brought about by the Military Justice Act of 1968, particularly the duties added to the newly created office of military judge, and both concluded that the duties of a military judge are sufficiently distinct from the other duties performed by military officers to require a second appointment. See id., at 240-256 (Sullivan, C. J., dissenting), and id., at 256-263 (Wiss, J., dissenting).

The Court of Military Appeals accordingly affirmed petitioner Weiss' conviction. Based on its decision in Weiss, the court, in an unpublished opinion, also affirmed petitioner Hernandez' conviction. Judgt. order reported at 37 M. J. 252 (1993). Weiss and Hernandez then jointly petitioned for our review, and we granted certiorari. 508 U. S. 939 (1993).

It will help in understanding the issues involved to review briefly the contours of the military justice system and the role of military judges within that system. Pursuant to Article I of the Constitution, Congress has established three tiers of military courts. See U. S. Const., Art. I, § 8, cl. 14. At the trial level are the courts-martial, of which there are three types: summary, special, and general. The summary court-martial adjudicates only minor offenses, has jurisdiction only over servicemembers, and can be conducted only with their consent. It is presided over by a single commissioned officer who can impose up to one month of confinement and other relatively modest punishments. Arts. 16(3), 20, UCMJ, 10 U. S. C. §§ 816(3), 820.

The special court-martial usually consists of a military judge and three court-martial members,¹ although the Code allows the members to sit without a judge, or the accused to elect to be tried by the judge alone. Art. 16(2), UCMJ, 10 U. S. C. § 816(2). A special court-martial has jurisdiction over most offenses under the UCMJ, but it may impose punishment no greater than six months of confinement, three months of hard labor without confinement, a bad-conduct discharge, partial and temporary forfeiture of pay, and a reduction in grade. Art. 19, UCMJ, 10 U. S. C. § 819. The general court-martial consists of either a military judge and at least five members, or the judge alone if...