The Justices and the Generals: The Supreme Court and Judicial Review of Military Activities

• Author: Colonel Darrell L. Peck
• Pages: 01

1. INTRODUCTION

   Orderly government requires that the judiciary be as scrupulous not to rnterfere with legitmate Amy matters as the Army mmt bescrupulous not to intervenernjudicial matters.'

   A more forceful expression of the need for judicial restraint than that posited by Justice Jackson in the Orloff case is difficult to im. agine. While the underlying concept can hardly be disputed, the comparison 18 extreme. Militaryintervention in judicial mattersin the United States is so unthinkable it is difficult to believe the Supreme Court seriously intended to put judicial interference with military matters in the same category.

   Apparently many of the lower courts did not believe Justice Jackson's intimations in Orloff, far in the ensuing twentytwo years litigation involving the armed forces has proliferated markedly. Legal proceedings involving the military have always tended to grow during and immediately following a war,2 and the

   'This article IS adapted fmm a thesis submitted m p8md fulfillmenf af the re-Qurements for the LL M degree m the Umuerafy of Virginia School of Law. The opinions and conclusioni presented herein ere those of the author and do not nscessanly reprment the views of The Judge Advocate Generave School or m y other gavernmmfal agency

   *'Calmel, JAGC. U S. Amy. B.A , 1952, J D 1961, Marquette Umvermty. U.M.. 19% University of Virgmia Member of the Barr of Rashmgton, Riscannn. theUS Court of Military Appeals and the US Supreme CourtlOrloff > Wdloughhy 345 U S 83. 94 (19631 (emphaeu added)'See, e.#, stabstical analysi~af ''open" cases handled by theLihgstion Division of the Office of The Judge Advocate General oftha Army, September 26,1974 This analysis ofcasra litigated by that Dlrlmonon behalfoftheDep~rtmenrofthoArmy reveals the wlume of c a m m that office rncreased and decreased along with Amencan military invdvemenf m V~tnam Study on file in the Depafimenf af Developments. Dactnne & Literature, The Judge Advocate Generapa School, US Army, Charlatlesville, Virginia

   MILITARY LAB REVIEW WOl. 70

   protracted' and increasingly unpopular hostilities in Vietnam have undoubtedly contributed heavily ta the recent surge Kor can the effect of an uninterrupted quarter century of military conscrip. tion' be ignored. But another important consideration has been the sympathetic reception of many of these cmes by the federal courts. \Vithout an appreciable chance of success, so large a number of mita never would have been imtiated.

   Not that there has been any notable consistency among the decisions: in the space of ten days. for example, the same circuit court of appeals which refused to apply constitutional due process principles to a military administrative discharge hearing6 had no hesitation about using the due process clause as a basis for es-tablishing continuing judicial supervision over the details of military orders, weaponry, and training.'It IB the very lack of any widely recognized principles governing judicial review of militam actions which encourages 60 much litigation involving 80 many diverse mues

   Although there are a few areas in which there 1s general agree-ment, for the most part the great variety of opinions among the federal district courts, and even among the circuit courts of appeals, makes it possible to find support for almost any proposition one may wish to assert with regard to judicial review of military actions. The only hope far escape from this quagmire of conflicting decisions lies in the Supreme Court. Although that Court has by no means decided all the issues involved, nor necessanly given the clearest guidance in those it has decided, careful analysm oftheprecedents that are availableshouldprovide

   B basis on which to construct acomprehensive and consistent set of pnnciples to guide the lower courts as to their appropriate role when called upon to review activities of the militap.

   Measuring only the eight years from the entry of C S ground combat unite m 1965 fa the wthdrawalofhencan forcesin 1973,the Viernam~~raarthelongesr m which the llnrred States has engaged Inadd~bon h e n c a n adimarrandother mrlitaly personnel performing more l~maedd e % were committed rn Vietnam both before and after that emht-veer mrmd

   . . .canscnptm was ~n effect contmuousl\ from enactment of the Selectna Service Acrof 1946. ActofJune 24 1946,ch 625,62Srat 604inorMilirargSelectiv~Serv~ce Acr,50USC App ~46l-i3rl3X)luntilJulg1 1973 5DCSC App S465(ciiSupp 11. 19721 Houewr, in the immonth penad before induction aufhonry expired. VIT tually the on19 men draffedveremembers afrhereservecompanenrs who had filled lo meet their resene obligations Army Times July 1- 1974. a1 23, e01 1

   'Crawe Y. Clifford. 455F 2d 94516thCir 19-21 Butri Hagopiani Knawltan. 470 F Pd 201 (2d Cir 1972)

   'Morgan v Rhodes 466 F Ld 608 i6rh Cir 19-21, rru'd sub nom Gillwan > Morgan. 413 U 5 1,19731

   18761 JUDICIAL REVIEW OF MILITARY ACTIVITIES

   It might be argued that there is little need to womy about clarify. ing the law in this area now because, with the end ofthe draft and the withdrawal of all United States military personnel from Vietnam, the huge surge of militawrelated litigation is rapidly sub. siding. The underlying problem remains, however, and will endure as long as the law is so unsettled. And not only is there a steady flow of litigation against the armed forces even in peacetime; but it would be overly optimistic, unfortunately, to believe that the inter. national situation will remain permanently quiescent, precluding another surge of militaryrelated litigation. Actually this may be the best time to address the problem, when the issues are still fresh but no longer quite so heated, when strong emotions and political considerations are less likely to hinder a dispassionate and reason. ed solution.

   At the outset of this analysis, we should divide military actions that the civil courts may be called upon to review into at least two major categories. First, there are the court-martial cases, those in which the petitioner has been, is being, or expects to be tried by courtmartial and asks the civil court to set aside, prevent or otherwise intervene in that action. Then there are the other cases, arising from the day-to-day activities by which themilitary carries out its designated responsibilities. For convenience these will be referred to as administrative activities. By far the largest sub. category of cases asking civil court intervention in these military administrative activities involves personnel actions-matters such as enlistment, induction, activation of members of the Reserve, pay, promotion, assignment, diecharge, and retirement, A commander's control over military installations is another fertile source of litigation, and usually involves challenges to either military activities with an expected environmental impact or the commander's regulation of political or commercial activities by others on military property. Cases involving purely military ac. tivities, such as preparation for and conduct of combat operations, are relatively rare.

   Although one might expect a fairly clear dichotomy between cases involving civil court review of courts.martia1 and those in. valving administrative activities of themilitary, thatisnot always the case. In the first place, a question arising from an ad. ministrative action may also constitute B crucial legal issue in a courtmartial.' But even when the facts do not requireit, decisions

   -Perhapa the mo6t obvious example m s e s from the fact that court-martla1

   iunsdictian normally depends on the accused person hamng first bean properly in.ductedorenlisredinrothe eemce. SerBillingsv.Truesdell.3alU S 642(1944).InreGrimle), 135 US 147 11890).

   of the courts, and especially of the Supreme Court, have m inextricably interwoven the two categories that It is difficult to ignore one in any study of the other.

   While the proper role of the civil courts in reviewing courts-martial actions LB still not entirely clear, there is even more confu. sion and uncertainty about judicial intervention in the ad. ministrative activities of the military. The following discussion, therefore, will focus pnmanly on the proper role of the civil courts in reviewing military administrative actions.% Major developments in the Supreme Court's guidance for civil court review of courts. martial cannot be ignored entirely, however, because those developments 80 frequently have an impact on judicial review of other military activities.

   In spite of the almost infinite variety of possible military sdministrative actions-indeed, because of it-there is a real need for a single set of principles, if at ail possible, which can be used to determine the reviewability of any of them which may be challeng. ed. That will be the ultimate goal of this analysis.

   11. A "DOCTRINE OF NONREVIEWABILITY" IS BORN AND PROSPERS

   Historically, there has been a great reluctance on thepart of civil courts to review activities of the military. This has sometimes been referred to as a "doctrine of nanrewewability."9 The term is often a great convenience and will beused here, butwith full recognition of the fact that referring to this judicial restramt as a doctrine is a serious exaggeration of its definiteness, clarity, and scope. Unfortunateiy, however, the courts have not been overly precise themselves in explaining their forbearance. This has contributed heavily to the lack of understanding of the role of civil courts in reviewing military activities. To fully appreciate the current state

   'Administrative actions by government agencies other than the mditary departments themselves, aveh as the Selective Service Syafem or theveterans Admmmaatm are not wnhm the scope of rhm art~cle even though they often havea close mditaw connection. iieifher *ill there be an) rreatrnent of the courts iunsdicrion exhavstian afadminisfrariveremedles, npmess. standing and aimila~ mues ancillar) to the fundamental queshan of revmvabiliryvEg, Sherman...