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decided: October 12, 1953.


Rehearing denied. Separate opinion filed by MR. JUSTICE FRANKFURTER.

Author: Frankfurter

[ 346 U.S. Page 844]


Further study and reflection have reinforced the conviction I expressed last June -- and on even broader grounds than I then indicated -- that this case should be set down for reargument. Fundamental issues which have neither been argued by counsel nor considered by the Court are here involved. On such important questions, the military authorities, the bar, and the lower courts (including the Court of Military Appeals) ought not to be left with the inconclusive determination which our disposition of the case last June implies. One has a right to assume that there is greater likelihood of securing agreement of views for a Court opinion at the beginning than at the end of a term.

 First. One of these problems concerns the effect of recent developments in the scope of inquiry on habeas corpus upon the relationship of the federal district courts in their habeas corpus jurisdiction to courts-martial. If the main opinion stands, matters which are open for inquiry on collateral attack upon a judgment of conviction entered in a United States District Court, a constitutional tribunal, will be foreclosed from inquiry when the judgment of conviction collaterally assailed is that of a court-martial, an executive tribunal of limited jurisdiction ad hoc in nature. This has not been the law up to now; and the assertion that "in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases" (346 U.S., at 139), is, I respectfully submit, demonstrably incorrect.

[ 346 U.S. Page 8451]

     . The first case in this Court involving the collateral attack, by habeas corpus, on the judgment of a court-martial was Ex parte Reed, 100 U.S. 13. Here is the test there laid down (100 U.S., at 23):

"The court had jurisdiction over the person and the case. It is the organism provided by law and clothed with the duty of administering justice in this class of cases. Having had such jurisdiction, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there were such, committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis, and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances. The exercise of discretion, within authorized limits, cannot be assigned for error and made the subject of review by an appellate court."

It was thus clearly stated that the standard for collateral consideration of judgments of courts-martial is the same as that applied on collateral consideration of judgments of other tribunals. Once "jurisdiction" is shown to exist, the inquiry ends; the question is not whether that jurisdiction was well or wisely exercised, or whether error was committed, it is only whether there was power to act at all.

This was always the traditional scope of inquiry when the judgment sought to be examined on habeas corpus was that of a federal or territorial or District of Columbia court. E. g., Matter of Moran, 203 U.S. 96 (Oklahoma territorial court; opinion by Holmes, J.); Harlan v. McGourin, 218 U.S. 442 (U.S. circuit court; opinion by Day, J.); Matter of Gregory, 219 U.S. 210 (District of Columbia court; opinion by Hughes, J., with copious citation of authority).

[ 346 U.S. Page 846]

     And so, in the earlier cases scrutinizing military sentences by habeas corpus, it was similarly laid down that "The single inquiry, the test, is jurisdiction." In re Grimley, 137 U.S. 147, 150. "Courts martial are lawful tribunals, with authority to finally determine any case over which they have jurisdiction, and their proceedings, when confirmed as provided, are not open to review by the civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject-matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced." Carter v. Roberts, 177 U.S. 496, 498; Carter v. McClaughry, 183 U.S. 365, 380-381; Grafton v. United States, 206 U.S. 333, 347-348. Allegations of irregularity or illegality in the composition of courts-martial were, of course, rigorously scrutinized (e. g., McClaughry v. Deming, 186 U.S. 49; cf. Kahn v. Anderson, 255 U.S. 1); but apart from this obvious amenability to judicial inquiry, the judgment of a court-martial meeting the test above quoted was unassailable even by the most extreme allegations of prejudice, unfairness, and use of perjured testimony. See Carter v. Woodring, 67 App. D.C. 393, 92 F.2d 544.

Thus, up to December 6, 1937, when the Court denied certiorari (302 U.S. 752) in the case last cited -- it was the last of Oberlin Carter's long series of attempts at judicial review of his court-martial -- the scope of habeas corpus in both military and civil cases was equally narrow: in both classes of cases it was limited solely to questions going to the "jurisdiction" of the sentencing court.

2. Later in the 1937 Term, Johnson v. Zerbst, 304 U.S. 458, was decided and blazed a new trail. It was held that procedural errors -- what theretofore were deemed matters not going to ...

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