The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial

AuthorBrittany Warren
PositionCaptain, U.S. Army. J.D., 2012, The George Washington University Law School; B.S., 2004, Duke University
I. Introduction
In 1957, in a case known colloquially around chambers as “The Case
of the Murdering Wives,” the Supreme Court reversed itself. In Reid v.
Covert (Reid II), it withdrew its barely one-year-old decision upholding
the courts-martial of two military spouses, and instead held that for
capital offenses in times of peace, the provisions of the Uniform Code of
Military Justice (UCMJ) granting court-martial jurisdiction over persons
accompanying the force could not be constitutionally applied to civilian
dependents of overseas armed forces servicemembers.1 For the first and
only time, after already publishing its opinion, the Supreme Court
reached a different result in identical litigation, following published
opinions, and without a controlling change in the composition of the
Reid II is traditionally known for two things. To military lawyers,
the case stands for the proposition that dependents may not be subject to
trial by court-martial, because the Fifth Amendment’s loophole for
military jurisdiction (“except in cases arising in the land and naval
forces”) cannot override the rights to a jury trial embodied in the Fifth
and Sixth Amendments.3 To international law aficionados, Reid II is the
* Captain, U.S. Army. J.D., 2012, The George Washington University Law School; B.S.,
2004, Duke University. The opinions and conclusions represented in this article are
solely those of the author and do not necessarily represent the views of the Department of
Defense, the Department of the Army, the Judge Advocate General’s Corps, or any
governmental agency. I am profoundly grateful to Professor Gregory Maggs, Dean Lisa
Schenck, and Colonel Denise Lind for helpful guidance in writing this article, as well as
the staff of the Military Law Review for outstanding editing. No one is an island, least of
all a lawyer, so my deepest appreciation goes to my husband, Lloyd, and to my children,
Sophia and Sam, for their unwavering love and support. Material from the papers of
Justice John Marshall Harlan II is quoted with the permission of the Seeley G. Mudd
Manuscript Library, 20th Century Public Policy Papers. Material from the papers of
Justice Hugo Black is quoted with the permission of Hugo L. Black, Jr.
1 Reid v. Covert, 354 U.S. 1 (1957).
2 Frederick Bernays Wiener, Persuading the Court to Reverse Itself, 14 LITIG. 6, 10
(1989). Wiener’s excellent account of the case and its rehearing is referenced liberally in
this article.
3 See infra notes 308–309 and accompanying text.
landmark case wherein the Supreme Court ruled that the Constitution
supersedes international treaties ratified by the United States.4 From a
vantage point nearly sixty years later, neither of those propositions
strikes a modern reader as extreme. At the time, however, Reid II was
incredibly controversial—before the Court,5 among the Justices
themselves,6 and in the public’s reaction to the Court’s seemingly abrupt
The story of Reid II is the story of the “murdering wives” at the
center of the controversy, Clarice B. Covert and Dorothy Krueger Smith.
They are in many ways unsympathetic figures. There is no doubt that
these women, in exceptionally violent ways, murdered their husbands,
but what is missing from that narrative is the fact that they were also two
mothers who were let down by the very military health system from
which they sought help.8 The story of Reid II is also the story of
Frederick Bernays Weiner, the retired Army lawyer who argued the case
at all levels of the appeal, and his legal strategy that illustrated his
vociferous belief that the civilian and military justice system must remain
separate from one another.9 Finally, the story of Reid II is the story of
the Court itself: Justice Hugo Black, who distrusted what he saw as the
encroachment of military power into civilian justice; Justice John
Marshall Harlan II, who cast his vote one way, and then another; and
Justice Felix Frankfurter, who initially refused to decide, and then finally
This case, and its two decisions, sits at the intersection between
Constitutional law, military law, and international law, and impacts
fundamental questions about the scope of the Constitution, executive and
legislative powers, and U.S. sovereignty. Can civilians be tried in
military courts? After Reid II, many people would say that the answer is
no, but like the women themselves, that answer is ultimately far more
4 See infra notes 304–307 and accompanying text.
5 See infra Parts IV.–VI.
6 See infra Part VII.A.
7 See infra Part VIII.A.
8 See infra Part III.
9 See infra Part IV.A.
10 See infra Parts IV.–VI.
II. Civilians Under Military Justice
For all its complexities, the issue of civilians in military courts was
not a novel one at the time of Reid II. Neither was it new to the Founders
when they were confronted with this issue back in 1787. Whether
civilians are ever amenable to court-martial jurisdiction is a question
almost as old as the concept of the court-martial itself—thus,
understanding the contours of the problem requires a brief detour into
legal and constitutional history.
A. The British Practice Before the Revolution
Tracing the origins of military jurisdiction over civilians begins with
an analysis of British practice following the passing of the first Mutiny
Act of 1689, which both legalized a standing army and brought it under
the control of Parliament.11 As tempting as it might be to think of the
rise of the civilian contractor as a uniquely twenty-first century
phenomenon, civilians were a common feature on the battlefield even
then. At that time, three classes of civilians typically accompanied a
British army during times of war: retainers, which included servants,
volunteers, and women and children; sutlers, who sold provisions like
tobacco and coffee to armies in the field;12 and civil officers and civilian
employees of the military.13 Each of these groups was subjected to
court-martial at various times,14 though the power of the British Crown
to court-martial these various groups tended to be construed narrowly,
both under the provisions of the Mutiny Act and the later Articles of
11 Courts-martial had existed before 1689, but they had traditionally been conducted by
clergymen and members of the Doctors’ Commons. It was not until the passage of the
first Mutiny Act in 1689 that the peacetime courts-martial of soldiers was allowed.
FRONTIER 75 (1998).
13 WIENER, supra note 11, at 7.
14 Records from the 1691 Irish campaign, for example, indicate that a sutler was
condemned for buying stolen goods, and a woman was condemned for inciting soldiers to
desert. Id. at 12 n.37.
15 The first Articles of War, for example, only granted court-martial jurisdiction for a
narrow class of offenses; Articles of War 16 required that military personnel accused of
crimes punishable “by the known laws of the land” be tried before a civilian magistrate.
Id. at 13–14.

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