Edmond v. United States (96-262), 520 U.S. 651 (1997).
[ Scalia ]
[ Souter ]
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No. 96-262


on writ of certiorari to the united states court of appeals for the armed forces

[May 19, 1997]

Justice Souter , concurring in part and concurring in part.

I join in Parts I and II of the Court's opinion and agree with the reasoning in Part III insofar as it describes an important, and even necessary, reason for holding judges of the Coast Guard Court of Criminal Appeals to be inferior officers within the meaning of the Appointments Clause, U. S. Const., Art. II, §2, cl. 2. The Court states that "[g]enerally speaking, the term `inferior officer' connotes a relationship [of supervision and direction] with some higher ranking officer or officers below the President; whether one is an `inferior' officer depends on whether he has a superior." Ante, at 11-12. The Court goes on to show that administrative supervision of these judges by the Judge Advocate General of the Coast Guard, combined with his power to control them by removal from a case, establishes that the intermediate appellate judges here have the necessary superior. With this conclusion I agree, but unlike the Court I am not prepared to decide on that basis alone that these judges are inferior officers.

Because the term "inferior officer" implies an official superior, one who has no superior is not an inferior officer. This unexceptionable maxim will in some instances be dispositive of status; it might, for example, lead to the conclusion that United States district judges cannot be inferior officers, since the power of appellate review does not extend to them personally, but is limited to their judgments. See In re Sealed Case, 838 F. 2d 476, 483 (CADC 1988), rev'd sub nom. Morrison v. Olson, 487 U.S. 654 (1988) (suggesting that "lower federal judges . . . are principal officers" because they are "not subject to personal supervision," 838 F.2d, at 483); cf. ante, at 13-14.

It does not follow, however, that if one is subject to some supervision and control, one is an inferior officer. Having a superior officer is necessary for inferior officer status, but not sufficient to establish it. See, e.g., Morrison v. Olson, supra, at 654, 722 (1988) ("To be sure, it is not a sufficient condition for `inferior' officer status that one be subordinate to a principal officer. Even an officer who is subordinate to a department head can be a principal officer") (Scalia, J., dissenting). Accordingly, in Morrison, the Court's determination that the independent counsel was "to some degree `inferior' " to the Attorney General, see id., at 671, did not end the enquiry. The Court went on to weigh the duties, jurisdiction, and tenure associated with the office, id., at 671-672, before concluding that the independent counsel was an inferior officer. Thus, under Morrison, the Solicitor General of the United States, for example, may well be a principal officer, despite his statutory "inferiority" to the Attorney General. See, e.g., 28 U.S.C. § 505 (directing Presidential appointment, with the advice and consent of the Senate, of a Solicitor General to "assist the Attorney General in the performance of his duties"). The mere existence of a "superior" officer is not dispositive.

In this case, as the Court persuasively shows, the Judge Advocate General has substantial supervisory authority over the judges of the Coast Guard Court of Criminal Appeals. As the Court notes, the Judge Advocate General prescribes rules of procedure for the Court of Criminal Appeals, formulates policies for review of court martial cases, and is authorized to remove judges from their judicial assignments without cause. See ante, at 13. While these facts establish that the condition of supervision and control necessary for inferior officer status has been met, I am wary of treating them as sufficient to demonstrate that the judges of the Court of Criminal Appeals are actually inferior officers under the Constitution.

In having to go beyond the Court's opinion to decide that the criminal appeals judges are inferior officers, I do not claim the convenience of a single sufficient condition, and, indeed, at this stage of the Court's thinking on the matter, I would not try to derive a single rule of sufficiency. What is needed, instead, is a detailed look at the powers and duties of these judges to see whether reasons favoring their inferior officer status within the constitutional scheme weigh more heavily than those to the contrary. Having tried to do this in a concurring opinion in Weiss v. United States, 510 U.S. 163, 182 (1994), I will not repeat the essay. See id., at 192-194 (reviewing the Morrison factors, including tenure, jurisdiction, duties, and removal; concluding that because it is "hard to say with any certainty" whether Courts of Military Review judges should be considered principal or inferior officers, deference to the political branches' judgment is appropriate). Here it is enough to add that after the passage of three Terms since writing in Weiss, I am unrepentant. I therefore join not only in the Court's conclusion that the necessary supervisory condition for inferior officer status is satisfied here, but in the Court's ultimate holding that the judges of the Coast Guard Court of Criminal Appeals are inferior officers within the meaning of the Appointments Clause.