The Supreme Court ruled Friday night, no, it was not going to unnecessarily insert itself into the military chain of command over President Joe Biden.
The Court’s ruling in Austin v. US Navy SEALs 1-26 largely halted a lower court order allowing certain seamen to defy a direct order. A group of Navy special operations personnel sought an exemption from the Pentagon’s requirement that all active duty members be vaccinated against Covid-19, claiming they should receive a religious waiver.
In fact, a majority of the Court ruled that troops must indeed follow orders, including an order to take a vaccine.
The decision is undeniably a victory for the balance of power between the executive and the judiciary that has prevailed for decades. But the fact that the Court had to consider this in the first place — not to mention that three judges, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, disagreed with the majority — is a worrying sign about the U.S. judicial power.
As Judge Brett Kavanaugh explained in a brief opinion explaining why the lower court erred, “this court essentially added itself to the Navy’s chain of command, ignoring the professional military judgments of military commanders.” Had the Court ruled otherwise? SEALS, it would have effectively placed itself at the top of the military’s chain of command, replacing Biden as commander in chief.
But as Kavanaugh rightly points out in his unanimous opinion, there is a long line of Supreme Court precedents showing that courts should be extremely reluctant to meddle in military affairs.
In Gilligan v. Morgan (1973), for example, the Court held that “the complex, subtle and professional decisions regarding the composition, training, equipment and control of a military force are essentially professional military judgments”, and that “it is difficult to imagine of an area of governmental activity in which the courts have less jurisdiction.”
Nevertheless, Judge Reed O’Connor, a notoriously partisan judge in Texas best known for a failed attempt to repeal the Affordable Care Act, ruled in favor of the military who refused to follow a direct order. And the conservative U.S. Court of Appeals for the Fifth Circuit denied the Navy’s request to keep key parts of O’Connor’s warrant.
That left the responsibility for restoring the proper military command structure to the Supreme Court. While the Court’s order does not entirely overturn O’Connor’s decision, it temporarily blocks that decision “to the extent that it prevents the Navy from considering respondents’ vaccination status when making deployment, assignment and other operational decisions.”
But the amazing thing about the SEALs The order is that the Supreme Court should intervene in this case in the first place.
There was order, but several judges wanted to turn things around
The most amazing thing about the SEALs injunction is that at least three judges disagreed. (While it’s likely six judges sided with the Navy here, only four judges — the three dissenters plus Kavanaugh — chose to reveal how they voted. So it’s possible another judge tacitly disagreed. .)
Thomas didn’t explain why he disagreed, but Alito published a short opinion, accompanied by Gorsuch, who explains why he believes judges should be able to counter the orders given to military personnel by their commanders. Alito complains, among other things, that the Navy has not given the military personnel a meaningful procedure that would allow them to apply for a religious exemption from the vaccination requirement.
The Navy has provided the Court with several statements from senior officers explaining why nearly every seaman should be vaccinated and why unvaccinated special war personnel are generally unemployed.
According to Admiral William Lescher, the Navy’s second-highest officer, naval vessels have limited medical facilities. So if one of the crew became seriously ill, that would require “return to port or emergency medical evacuation by helicopter” — potentially requiring the entire ship to abandon its mission to accommodate an unvaccinated service member.
Special war personnel are also often deployed in very small units. So one member getting sick is a big blow to the team. And the Navy arguedspecial operations are “often conducted in hostile, austere, or diplomatically sensitive environments” where a critically ill service member may not be able to receive local medical care and may need to be evacuated by the navy — an operation that is dangerous in and of itself and that could affect the crewmates of the service. force them to risk their lives on his or her behalf.
To these concerns, Alito essentially said, “Prove it.”
“To win in the trial,” Alito wrote in response to the Navy’s warnings, “it would not be enough for the government to claim that sending an unvaccinated seal on such a mission could have such consequences. ” Rather, the Navy should prove that mandating vaccination is “the least restrictive means of furthering its interests in light of the current nature of the pandemic, what is known about the spread of the virus and the effectiveness of the vaccines, practices, and physical characteristics of Navy Seals and others in the Special Warfare community.”
I want to emphasize the enormity of what Alito is suggesting here. Once the Supreme Court allows a single soldier to resist a direct order, that opens the door for any member of the armed forces who disagrees with an order that goes to court to seek exemption.
Think of the kinds of orders soldiers must obey – “take that hill”, “guard this prisoner”, “cease fire”. And even if Alito didn’t intend to let his dissent apply to such battlefield orders, his dissent could effectively neutralize major military assets while litigating religious freedom cases brought by military personnel. For example, imagine that the captain of an aircraft carrier is ordered to deploy his ship close to Ukraine – but the captain refuses because, for religious reasons, that captain believes that Vladimir Putin should be victorious in his war against Ukraine.
The Court has understood for decades that the military simply cannot function if its members think orders are optional. As the Supreme Court in Goldman v. Weinberger (1986), “The essence of military service ‘is the subordination of the individual’s desires and interests to the needs of the service.'”
Allow service members to request waivers from the courts, goldman explains, would undermine the “habit of military personnel to immediately follow military procedures and orders” — a habit that “must be virtually reflexive with no time for debate or reflection.”
At the end of the day, every service member must know who their commander is and everyone must respect the chain of command. There can only be one person at the top of that chain, and that can be Joe Biden or Samuel Alito.
And, as Kavanaugh points out in his opinion, the Constitution is very clear about who is at the top of that chain. It states in unequivocal terms that “the president becomes commander in chief of the United States Army and Navy†