The Role of the Judiciary: A Critique of the Military Deference Doctrine

• Pages: 321-345
• Date: 01 November 2025
• Published date: 01 November 2025
• Author: Major Melissa L. Ken,Brigadier General Linell A. Letendre
• Subject Matter: Derecho Civil

ARTICLES

The Role of the Judiciary: A Critique of the Military

Deference Doctrine

Major Melissa L. Ken & Brigadier General Linell A. Letendre*

ABSTRACT

The military deference doctrine has been a fixture in American jurisprudence

since the early 1800s. While it has gone through a few iterations over history, we

are currently in a period of increased deference to military decision making which

undercuts civilian control of the military and degrades the judiciary’s ability to act

as a necessary constitutional check. Using a COVID-era vaccine case study, this

article argues that the military deference doctrine has essentially become a rubber

stamp of approval for military actions. It asserts the importance of bolstering civil-

ian control of the military and enforcing the proper role of the judiciary in ensur-

ing that the military is held to the correct level of constitutional scrutiny. These

measures are necessary to protect the constitutional rights of our service members

as well as our carefully constructed allocation of governmental power.

On March 11, 2020, the Department of Defense (DoD) issued a restriction limiting

military members from engaging in any travel, both personal and official.

1

Coronavirus Timeline, DEP’T DEF. (Mar. 18, 2024), https://perma.cc/68LN-RS52.

The cause

of this moratorium was the COVID-19 virus. On the same day that the DoD put a

stop to travel, the World Health Organization declared COVID-19 to be a pan-

demic.

2

Over the course of the following years, indeed to the writing of this article,

COVID-19 has changed our nation and our world. According to the Center for

Disease Control and Prevention (CDC), there have been over 110 million cases of

COVID-19 in the United States alone resulting in more than one million deaths.

3

As of December 7, 2024, there were 98,174,364 reported cases and 1,213,046 deaths attributed to

COVID-19 in the United States alone. Covid Data Tracker, CDC (Apr. 7, 2025), https://perma.cc/T3PP-XX66.

Among DoD employees (including military, civilian, dependent, and contractors),

there have been 740,942 cases resulting in 6,587 hospitalizations and 690 deaths.

4

In an effort to stem the tide, the United States Secretary of Defense implemented

a mandatory vaccine requirement for all servicemembers.

5

As of December 20,

* Maj Melissa L. Ken, Judge Advocate General Corps, U.S. Air Force. Retired Brig Gen Linell

A. Letendre, U.S. Air Force. Although one of the authors is an active-duty officer in the United States

Air Force, the opinions, assertions, and views expressed in this article are those of the authors and do not

reflect the official guidance or position of the United States Government, the Department of Defense, the

United States Air Force or the United States Space Force. © 2025, Major Melissa L. Ken & Brigadier

General Linell A. Letendre.

1.

2. Id.

3.

4. Coronavirus Timeline, supra note 1.

5. Memorandum from Sec’y of Defense Lloyd J. Austin on Mandatory Coronavirus Vaccination,

(Aug. 24, 2021).

321

2022, just over two million service members have been fully vaccinated as a result

of this official mandate.

6

After only a year of mandatory vaccines, Congress added a

provision to the 2023 National Defense Authorization Act rescinding the military’s

vaccine mandate.

7

DOD Rescinds COVID-19 Vaccination Mandate, DEP’T DEF. (Jan. 10, 2023), https://perma.cc/

3ABG-FB3F.

While this article does not presume to address the issue of whether the military

should have had a vaccine mandate for COVID-19, it does question the protec-

tions afforded to military decision makers by all branches of civilian government,

chiefly the deference given by the judiciary. Particularly in the last twenty years,

the general civilian population is deferential to military decisions due to military

expertise and cultural expectations of servicemembers’ character.

8

Ronald R. Krebs & Robert Ralston, More Deferential But Also More Political: How Americans’

Views of the Military Have Changed Over 20 Years, WAR ON THE ROCKS (Nov. 17, 2021), https://perma.

cc/STJ6-7D6S.

The military

deference doctrine refers to the deference given to military decisions by civilian

courts, not members of the general public.

9

At the beginning of this nation’s history, the military deference doctrine meant

that as long as a military court had proper jurisdiction over an issue, a civilian

court would not even hear that case.

10

In more modern deference doctrine juris-

prudence, civilian courts will typically apply lesser scrutiny to cases that come

from the military context than they would if that same case were in the civilian

context.

11

This article argues that the civilian judiciary must use its own expertise, not to

govern the day-to-day operations of the military or determine military interests

and priorities, but in the constitution and law to ensure that military members are

protected and that military leadership is held to a higher standard. The military

has evolved and more closely mirrors civilian society in many ways; however,

the judiciary still insists on treating the military as a separate society with a sepa-

rate standard of review for constitutional issues involving military members. This

antiquated doctrine hinders the military’s development and ability to evolve into

a modern warfighting machine by unnecessarily restricting the membership of

the military.

This article first provides some background on the military deference doctrine

and how its jurisprudence developed over our nation’s history. The next section

explores the implications of the doctrine in Austin v. U.S. Navy Seals, a case

recently heard by the Supreme Court of the United States and specifically consid-

ers how the application of the doctrine influenced the two written opinions.

Finally, the article considers how a strict application of the military deference

6. Coronavirus Timeline, supra note 1.

7.

8.

9. “At the risk of oversimplification, the military deference doctrine requires that a court considering

certain constitutional challenges to military legislation perform a more lenient constitutional review than

would be appropriate if the challenged legislation were in the civilian context.” John F. O’Connor, The

Origins and Application of the Military Deference Doctrine, 35 GA. L. REV. 161, 161 (2000). See infra

note 20 for Supreme Court’s first explicit reference to this doctrine and its implementation.

10. Id. at 165.

11. Id. at 161.

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