Wading Into the Supreme Court’s Military Law Jurisprudence

“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that ‘it is the primary business and armies and navies to fight or be ready to fight wars should the occasion arise.’”[1]

“We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.”[2]


“And just as important, the constitutional foundation of courts-martial—as judicial bodies responsible for the ‘trial and punishment’ of service members—is not in the least insecure . . . Throughout that history, and reflecting the attributes described above, courts-martial have operated as instruments of military justice, not (as the dissent would have it) mere ‘military command,’. . . .”[3]

“In essence, these tribunals are simply executive tribunals whose personnel are in the executive chain of command.”[4]

“Military law is, in many respects, harsh law which is frequently cast in very sweeping and vague terms.”[5]

“And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.”[6]


“The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights.”[7]

“As yet it has not been clearly settled to what extent the Bill of Rights and other protective parts of the Constitution apply to military trials.”[8]

“Decisions of this Court after O’Callahan have also emphasized that Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military.”[9]

“Nor can it be denied that the imposing number of cases from this Court previously cited suggest that judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.”[10]

These are but a few dizzying and contradictory comments on the military and its criminal disciplinary system made over the years—by the same judicial institution, the Supreme Court of the United States.

To reach a broader audience, previous articles always included some form of military justice legal history. Thought it might be a fun learning process and diversion from my ongoing research and rabbit hole adventures to explore some of that history here.

So, next time I’ll be starting with a little military legal history beginning around the Revolutionary era.


[1] Parker v. Levy, 417 U.S. 733, 743 (1974) (citing United States ex. rel. Toth v. Quarles, 350 U.S. 11, 17 (1955)).

[2] United States ex. rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).

[3] Ortiz v. United States, 138 S. Ct. 2165, 2175 (2018).

[4] Reid v. Covert, 354 U.S. 1, 36 (1957).

[5] Reid v. Covert, 354 U.S. 1, 38 (1957).

[6] United States ex. Rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).

[7] Burns v. Wilson, 346 U.S. 137, 142 (1953).

[8] Reid v. Covert, 354 U.S. 1, 37 (1957).

[9] Solorio v. United States, 483 U.S. 435, 447 (1987).

[10] Rostker v. Goldberg, 453 U.S. 57, 70 (1981).

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