Armed Forces

• Author: Kenneth L. Karst
• Pages: 117-118

Page 117

At the height of the Cold War, a doctor was drafted into the army; he was denied the commission usually afforded doctors because he refused to disclose whether he had been a member of any organization on the ATTORNEY GENERAL ' SLIST of subversive organizations. Urging that he had a constitutional privilege to maintain the privacy of his associations, he sought a writ of HABEAS CORPUS in a federal court to compel the army either to discharge him or to award him a commission. The Supreme Court, in Orloff v. Willoughby (1953), first rejected his claim to a commission and then held that there was no right to JUDICIAL REVIEW "to revise duty orders as to one lawfully in the service." In discussing the latter point the Court remarked, almost as a throwaway line, "The military constitutes a specialized community governed by a separate discipline from that of the civilian."

The author of the Orloff opinion was Justice ROBERT H. JACKSON; one of his clerks that year, who would later become Chief Justice of the United States, was WILLIAM H. REHNQUIST. In PARKER V. LEVY (1974) and ROSTKER V. GOLDBERG (1981) Justice Rehnquist, writing for the Court, sought to make the "separate community" idea the foundation for a broad principle of deference?to military authorities and to Congress in military matters?that comes close to creating a "military exception" to the BILL OF RIGHTS.

Parker involved another drafted army doctor who was a bitter opponent of the VIETNAM WAR and who counseled enlisted men to refuse to go to Vietnam. He was convicted by a court-martial of "conduct unbecoming an officer" in violation of the Uniform Code of Military Justice (UCMJ). The court of appeals held this statutory language to be unconstitutionally vague in its application to speech, but the Supreme Court reversed. Parker's own speech was plainly beyond the pale, by any stretch of the FIRST AMENDMENT. The question was whether the VAGUENESS of the UCMJ entitled him to act, in effect, as a representative of officers not in court who might be deterred by the "conduct unbecoming" provision from engaging in speech that was constitutionally protected. Justice Rehnquist concluded that the answer was No; in applications of the UCMJ, the usual First Amendment standard of vagueness gave way to the looser standard for criminal laws regulating economic affairs. In discussing this issue he wrote at length on the theme of deference to the special needs of the military as a "separate community."

Rostker presented a quite different...