Military and the Court Summary

  • Last updated on November 11, 2022

Armed forces of the United States, which has its own courts that enforces the Uniform Code of Military Justice.

When the Supreme Court defined the relationship between the military and the Court in the mid-nineteenth century, it recognized the military as a legally separate sphere that looks primarily to the Congress and the president for protection and governance rather than to the courts and the Constitution. In Dynes v. Hoover[case]Dynes v. Hoover[Dynes v. Hoover] (1858), the Court recognized that the power to provide for a system of military justice arose from Article I, clause 14, of the Constitution, which permits Congress to make rules to govern and regulate the armed forces, and not Article III, which gives Congress the authority to create a system of federal courts.Uniform Code of Military JusticeUniform Code of Military Justice

In Burns v. Wilson[case]Burns v. Wilson[Burns v. Wilson] (1953), the Court determined that the military justice system exists separate and apart from the federal judicial system. In Parker v. Levy[case]Parker v. Levy[Parker v. Levy] (1974), the Court characterized the military as “a specialized society separate from civilian society.” The historical and contemporary relationships of the Supreme Court to the military are, therefore, highly deferential. Under this approach, the Court accords both Congress and the president substantial discretion with regard to the structuring and operation of the military. In Orloff v. Willoughby[case]Orloff v. Willoughby[Orloff v. Willoughby] (1953), it found that judges were not suited to running the military. The Court therefore exercises a limited scope of review of the military.

The Court tends to defer to the determination of Congress. In Weiss v. United States[case]Weiss v. United States[Weiss v. United States] (1994), the Court considered whether a special, additional appointment was required under the Constitution for military legal officers (judge advocate generals or JAGs) to serve as military judges. The Court held that Congress could determine the structure of the military justice system within its discretion and determine judicial appointments as it saw fit.

The Court has generally adhered to a deferential standard of review with few notable exceptions. One exception is Frontiero v. Richardson[case]Frontiero v. Richardson[Frontiero v. Richardson] (1973), an equal protection challenge to a law that provided spouses of male members of the armed services quarters allowances and medical and dental benefits without a dependency test while requiring that spouses of female members show that they were in fact dependent for more than one-half of their support to qualify for allowances and benefits. The Court held that such different treatment of spouses of men and women service members violated equal protection. A plurality of the Court applied strict scrutiny, which would require that the classification be narrowly tailored to meet a compelling governmental interest. Four other justices reached the same conclusion applying a less searching middle-tier scrutiny under which the classification must be closely related to the fulfillment of an important governmental interest. Justice William H. Rehnquist dissented, contending that the Court should defer to Congress’s policy choices in the area of military rules and regulations. Frontiero clearly departs from the judicial deference evident in Weiss.

The Bill of Rights

Although the degree to which the Bill of RightsBill of Rights applies to members of the armed services has remained controversial, there are a number of areas in which those protections are either expressly or by necessary implication inapplicable. Indeed, a number of rights that Americans take for granted are either denied to members of the armed services or offered only in a limited way. In United States ex rel. French v. Weeks[case]Weeks, United States ex rel. French v.[Weeks, United States ex rel. French v.] (1922), the Court found that a member of the armed services is “subject to military law, and the principles of that law, as provided by Congress, [constitute] for him due process of law in a constitutional sense.”

Aside from due process rights, members of the armed services have fewer rights with respect to free speech and political participation. For example, Article 88 of the Uniform Code of Military Justice proscribes the use of “contemptuous words” against the president and other high political officials, and Articles 133 (proscribing conduct unbecoming) and 134 (the general article, proscribing service-discrediting conduct) may be used to prosecute disloyal statements. Rights to demonstrate and affiliate with advocacy groups, especially extremist groups or hate groups, which would be protected for civilians, are denied to those in the military. Similar First Amendment restrictions that would be unthinkable in a civilian context have been held constitutional. For example, the Military Honor and Decency Act, which prohibits the sale or rental of sexually explicit materials at military exchanges was held constitutional in a lower court in General Media Communications v. Cohen in 1997. The Court also found that religious practices or beliefs cannot excuse compliance with military regulations such as those governing uniform standards. For example, in Goldman v. Weinberger[case]Goldman v. Weinberger[Goldman v. Weinberger] (1986) the Court upheld a ban on wearing headgear indoors as applied to a Jewish officer who wanted to wear a yarmulke.

Equal Protection

Even though racial classifications are subject to the “most rigid scrutiny” under the equal protection clause, the Court found that wartime necessities allow a military commander to issue a racially based curfew in Hirabayashi v. United States[case]Hirabayashi v. United States[Hirabayashi v. United States] (1943). In addition to restrictions based on race, the Court allowed sex-based discrimination by upholding male-only draft registration in Rostker v. Goldberg[case]Rostker v. Goldberg[Rostker v. Goldberg] (1981) and a naval officer promotion program that provided advantages to women over men in Schlesinger v. Ballard[case]Schlesinger v. Ballard[Schlesinger v. Ballard](1975). Likewise, privacy rights in the military enjoy a more limited scope than under the Court’s civilian precedents. For example, a court of military appeals in 1990 upheld the issuance of “safe sex” orders to military personnel infected with the human immunodeficiency virus (HIV).

Some provisions of the Bill of Rights such as the Fifth Amendment expressly exempt members of the military from their scope. The Fifth Amendment excepts from its coverage “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” The Sixth Amendment’s right to trial by jury has been treated similarly by implication in Ex parte Milligan[case]Milligan, Ex parte[Milligan, Ex parte] (1866).

In Woods v. Cloyd W. Miller Co.[case]Woods v. Cloyd W. Miller Co.[Woods v. Cloyd W. Miller Co.] (1948), the Court found that Congress and the president, but not the Court, decide on when and how to go to war and determine when war and its consequences are over.War powers Case law, as well as the text of the Constitution, confirms Justice Harold H. Burton’s observation that “we have a fighting constitution” in the opinion for Lichter v. United States[case]Lichter v. United States[Lichter v. United States] (1948). The war powers of the national government embrace not only the power to fight but also “the power to wage war successfully,” according to Chief Justice Charles Evans Hughes in Hirabayashi. Consequently, in the Selective Draft Law Cases[case]Selective Draft Law Cases[Selective Draft Law Cases] (1918) the Court upheld conscription, involuntary military service, and the use of state militias to fight against foreign enemies abroad and rejected the notion that military service is “involuntary servitude” prohibited by the Thirteenth Amendment.

The Civil War

A major period of conflict between the Court and the military occurred during the Civil WarCivil War. Several cases taxed the independence and agility of the judiciary by implicitly or explicitly questioning the constitutionality of congressional Reconstruction and pitting the Court against the Radical Republican Congress. The stage was set by the Court’s ruling in Ex parte Milligan that civilians could not be tried by military courts or commissions in peacetime when civilian courts were open and functioning. The much later case of Ex parte Quirin[case]Quirin, Ex parte[Quirin, Ex parte] (1942) differs in that one of the defendants, Herbert Hans Haupt, who claimed U.S. citizenship, had entered the country as a spy and thus could be tried in wartime under military jurisdiction.

Like Milligan’s case, the cases of Ex parte McCardle[case]McCardle, Ex parte[MacCardle, Ex parte] (1868) and Ex parte Yerger[case]Yerger, Ex parte[Yerger, Ex parte] (1869) both involved trials before military commissions. Their trials had occurred long after the cessation of hostilities and during the period of congressional Reconstruction. McCardle was a Mississippi newspaper editor who vituperatively attacked Reconstruction, and Yerger was an accused murderer. Both sought review in the Court by writ of habeas corpus. Resolution of the merits of their attacks on the validity of military jurisdiction and ReconstructionReconstruction were avoided by a ruling in McCardle’s case that the particular habeas statute on which his petition was grounded had been repealed by Congress before a decision in his case thus revoking the Court’s appellate jurisdiction over his case and by Yerger’s release from custody to stand trial before a civilian court.

Two other attempts to bring the matter of congressional Reconstruction before the Court directly also failed on justiciability grounds. The resolution of these cases prevented a major contest between the Court and the military. Two other cases, Mississippi v. Johnson[case]Mississippi v. Johnson[Mississippi v. Johnson] (1867), in which the Court held that it lacked the power to enjoin a president, and Georgia v. Stanton[case]Georgia v. Stanton[Georgia v. Stanton] (1868), which held that a suit by a state raised a political question, concluded the post-Civil War power struggle. In the end, the Court never ruled on the validity of military rule during Reconstruction.

Further Reading
  • Bishop, Joseph W., Jr., Justice Under Fire: A Study of Military Law. New York: Charterhouse, 1974.
  • Borch, Frederick L. Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti. Washington, D.C.: Office of the Judge Advocate General and Center of Military History, United States Army, 2001.
  • Fairman, Charles. Reconstruction and Reunion, 1864-1888. New York: Macmillan, 1971.
  • Lurie, Jonathan. Arming Military Justice: Origins of the United States Court of Military Appeals, 1775-1950. Princeton, N.J.: Princeton University Press, 1992.
  • Lurie, Jonathan. Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951-1980. Princeton, N.J.: Princeton University Press, 1998.
  • Shanor, Charles A., and L. Lynn Hogue. Military Law in a Nutshell. 2d ed. St. Paul, Minn.: West Publishing, 1996.

Bill of Rights

Civil War


Frontiero v. Richardson

Hirabayashi v. United States

McCardle, Ex parte

Martial law

Military justice

Milligan, Ex parte

Mississippi v. Johnson

Quirin, Ex parte

Rostker v. Goldberg

War and civil liberties

War powers

Categories: History