This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
Petitioners argue that judges serving on the Court of Military Commission Review hold a second, military office, which they say violates the dual‑office‑holding prohibition in 28 U.S.C. § 973(b).
Background and question before the Court
The dispute centers on whether Section 973(b) prohibits military officers from serving on the Court of Military Commission Review.
What each side argues
Petitioners
According to Petitioners, petitioners distinguish between federal officers appointed to a second office and those who merely exercise additional duties within a single office.
Petitioners contend that the four judges who began serving on the CMCR were appointed judges, which they say violates the dual‑office‑holding ban and disqualifies them from hearing the appeals.
According to Petitioners, petitioners note that Congress has sometimes expressly authorized military officers to hold a second, even civil, office, citing the CIA director as a common example.
Petitioners argue that the Government’s claim of rigorous administrative enforcement of the statute is empty.
Government
According to Brian H. Fletcher (Respondent), according to Brian H. Fletcher (Respondent), the Government asserts that Section 1259 gives this Court appellate jurisdiction to review decisions of the Court of Appeals for the Armed Forces.
The Government maintains that the President merely ratified the placement of officers in the CMCR in a manner authorized by Congress.
According to Government, the Government hopes the Court will hold that § 973(b) does not prevent military officers from serving on the CMCR.
Amicus (Bamzai)
According to Bamzai, amicus counsel argues that this Court lacks Article III jurisdiction to issue writs in these cases.
What happened at oral argument
Justice Sotomayor asked Mr. Vladeck what position he takes on the point raised by the amici.
Justice Ginsburg asked to return to the beginning of the argument about the CAAF’s original jurisdiction.
According to Justice Kagan, justice Kagan questioned the scope of the appellate jurisdiction language in the statute.
Justice Kennedy asked whether there is a federal question when there is no appeal.
Chief Justice Roberts asked whether, if the reading of the authorization or savings clause is correct, there is any reason to fix a problem.
What the Court decided
Why it matters
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- a0eeffe7700287c76703-r1-cd79fd9f6a19c62e.pdforal argument transcript
Guide generated September 26, 2026. Automated validation accepted this version.