Cite as: 510 U. S. 163 (1994)
Opinion of Scalia, J.
II
With respect to the Due Process Clause challenge, I think it neither necessary nor appropriate for this Court to pronounce whether "Congress has achieved an acceptable balance between independence and accountability," ante, at 180. As today's opinion explains, a fixed term of office for a military judge "has never been a part of the military justice tradition," ante, at 178. "Courts-martial . . . have been conducted in this country for over 200 years without the presence of a tenured judge," ante, at 179. Thus, in the Military Justice Act of 1968 the people's elected representatives achieved a "balance between independence and accountability" which, whether or not "acceptable" to five Justices of this Court, gave members of the military at least as much procedural protection, in the respects at issue here, as they enjoyed when the Fifth Amendment was adopted and have enjoyed ever since. That is enough, and to suggest otherwise arrogates to this Court a power it does not possess.
"[A] process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country . . . . [That which], in substance, has been immemorially the actual law of the land . . . is due process of law." Hurtado v. California, 110 U. S. 516, 528 (1884).
inadequately presented and not at all argued. The Petition for Certiorari said only: "There is considerable force to the argument that military appellate judges are 'superior' or 'principal' officers, in which case the President must appoint them with the advice and consent of the Senate. But in any event, . . . ." Pet. for Cert. 12. The only reference in petitioners' brief was the statement that "if military judges are principal officers, it is an even more serious transgression of the purposes of the Appointments Clause to have their original commissions substitute for an appointment to a principal office." Brief for Petitioners 15. As Justice Souterís opinion demonstrates, the issues are complex; they should be resolved only after full briefing and argument.
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