Thomas L. Wheeler v. United States

With the exception of “summary” courts-martial, which are non-adversarial, non-criminal proceedings, see Middendorf v. Henry, 425 U.S. 25, 42 (1976), servicemembers facing court-martial had an absolute right, from the Founding through 2018, to be tried by a panel of fellow servicemembers. Indeed, until the post-World War II advent of military judges, the panel was not just part of the court-martial; it was the courtmartial. Starting in 1968, a servicemember facing a special or general court-martial could request to be tried by a “judge alone.” But since 2019, Congress and the President have also authorized some special courtsmartial to proceed before a “judge alone” even when the accused objects. See 10 U.S.C. §§ 816(c)(2)(A), 819(b). These bench trials are not just for petty offenses. As petitioners’ cases demonstrate, they can also include serious misdemeanors and felonies—and civilian crimes as well as military ones. The Court of Appeals for the Armed Forces (CAAF) conceded below that “historical tradition weighs in favor of finding a due process right to a panel” in these cases, Pet. 16a, but nevertheless held that no such right exists. The question presented is: Whether Congress violated the Fifth Amendment’s Due Process Clause when it deprived servicemembers facing criminal prosecutions of the right to be tried by a panel of fellow servicemembers.