Cases by Issue - Active Duty

Loving v. United States

Mon, 05 Jan 2009 16:24:38 +0000

Case Basics

Docket No.

94-1966

Petitioner

Loving

Petitioner Type

Petitioner

Respondent

United States

Respondent Type

Respondent

Heard By

Rehnquist Court (1994-2005)

Decided By

Rehnquist Court (1994-2005)

Opinion

517 U.S. 748 (1996)

Argued

Tuesday, January 9, 1996

Decided

Monday, June 3, 1996

Advocates

John H. Blume (Argued the cause for the petitioner)

Edwin S. Kneedler (Argued the cause for the respondent)

Facts of the Case

A general court-martial found Dwight J. Loving, an Army private, guilty of both premeditated murder and felony murder under Article 118 of the Uniform Code of Military Justice. The court-martial sentenced Loving to death based on the aggravating factors that the premeditated murder was committed during a robbery and that he had committed a second murder. The commander who convened the court-martial approved the findings and sentence. In affirming, the U.S. Army Court of Military Review and the U.S. Court of Appeals for the Armed Forces rejected Loving's contention that the President lacked the authority to prescribe aggravating factors in capital murder cases that enabled the court- martial to sentence him to death. Loving claimed that the separation-of-powers principle prevented the President from promulgating the Executive Order.

Question

Does the President have the authority, consistent with the separation-of- powers principle, to prescribe aggravating factors that permit a court-martial to impose the death penalty upon a member of the armed forces convicted of murder?

Conclusion

Decision: 9 votes for United States, 0 vote(s) against
Legal provision:

Yes. In a unanimous opinion delivered by Justice Anthony Kennedy, the Court held that not only does the Constitution require the aggravating factors of the military's death penalty, but that the President's prescription of the challenged aggravating factors did not violate the separation-of-powers principle. Justice Kennedy wrote, "[a]lthough it may not delegate the power to make the law...Congress may delegate to others the authority or discretion to execute the law under and in pursuance of its terms."

Ryder v. United States

Mon, 05 Jan 2009 16:15:27 +0000

Case Basics

Docket No.

94-431

Petitioner

Ryder

Petitioner Type

Petitioner

Respondent

United States

Respondent Type

Respondent

Heard By

Rehnquist Court (1994-2005)

Decided By

Rehnquist Court (1994-2005)

Opinion

515 U.S. 177 (1995)

Argued

Tuesday, April 18, 1995

Decided

Monday, June 12, 1995

Advocates

Allen Lotz (Argued the cause for the petitioner)

Lawrence G. Wallace (Argued the cause for the respondent United States)

Facts of the Case

James Ryder, an enlisted member of the Coast Guard, was convicted of drug offenses by a court-martial. The Coast Guard Court of Military Review affirmed. On rehearing, the court rejected Ryder's claim that its composition violated the Appointments Clause because two of the judges on the three-judge panel were civilians appointed by the General Counsel of the Department of Transportation. The Court of Military Appeals agreed with Ryder that the appointments violated the Clause under its previous decision in United States v. Carpenter that appellate military judges are inferior officers who must be appointed by a President, a court of law, or a head of a department. The court nonetheless affirmed Ryder's conviction on the ground that the actions of the two civilian judges were valid de facto.

Question

Is it proper to accord de facto validity to the actions of civilian judges on a military appellate panel, when the accused challenges the composition of the panel as a violation of the Constitution's Appointments Clause?

Conclusion

Decision: 9 votes for Ryder, 0 vote(s) against
Legal provision: Article 2, Section 2, Paragraph 2: Appointments Clause

No. In a unanimous opinion delivered by Chief Justice William H. Rehnquist, the Court held that the judges' actions were not valid de facto. The Court reasoned that a defendant who made a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case was entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation had occurred. The Court also noted that review by the properly constituted Court of Military Appeals did not necessarily give Ryder all the possibility for relief that review by a properly constituted Coast Guard Court of Military Review would have given him.

Weiss v. United States

Mon, 05 Jan 2009 16:16:46 +0000

Case Basics

Docket No.

92-1482

Petitioner

Weiss

Petitioner Type

Petitioner

Respondent

United States

Respondent Type

Respondent

Heard By

Rehnquist Court (1993-1994)

Decided By

Rehnquist Court (1993-1994)

Opinion

510 U.S. 163 (1994)

Argued

Wednesday, November 3, 1993

Decided

Wednesday, January 19, 1994

Advocates

Alan B. Morrison (on behalf of the Petitioner)

Drew S. Days, III (on behalf of the Respondent)

Facts of the Case

None

Question

None

Conclusion

Decision: 9 votes for United States, 0 vote(s) against
Legal provision: Article 2, Section 2, Paragraph 2: Appointments Clause

None

Conroy v. Aniskoff

Mon, 05 Jan 2009 16:01:14 +0000

Case Basics

Docket No.

91-1353

Petitioner

Conroy

Petitioner Type

Petitioner

Respondent

Aniskoff et al.

Respondent Type

Respondent

Heard By

Rehnquist Court (1991-1993)

Decided By

Rehnquist Court (1991-1993)

Opinion

507 U.S. 511 (1993)

Argued

Monday, January 11, 1993

Decided

Wednesday, March 31, 1993

Advocates

Kevin M. Cuddy (on behalf of the Respondents)

Robert H. Klonoff (on behalf of the Petitioner)

John F. Manning (on behalf of the United States as amicus curiae supporting the Petitioner)

Facts of the Case

None

Question

None

Conclusion

Decision: 9 votes for Conroy, 0 vote(s) against
Legal provision: 50 U.S.C. 525

None

William "Sky" King v. St. Vincent's Hospital

Mon, 05 Jan 2009 16:24:02 +0000

Case Basics

Docket No.

90-889

Petitioner

William "Sky" King

Petitioner Type

Petitioner

Respondent

St. Vincent's Hospital

Respondent Type

Respondent

Heard By

Rehnquist Court (1991)

Decided By

Rehnquist Court (1991-1993)

Opinion

502 U.S. 215 (1991)

Argued

Wednesday, October 16, 1991

Decided

Monday, December 16, 1991

Advocates

Harry L. Hopkins (on behalf of the Respondent)

Amy L. Wax (on behalf of the Petitioner)

Facts of the Case

None

Question

None

Conclusion

Decision: 8 votes for William "Sky" King, 0 vote(s) against
Legal provision: 38 U.S.C. 2024

None

Solorio v. United States

Mon, 05 Jan 2009 17:33:51 +0000

Case Basics

Docket No.

85-1581

Petitioner

Solorio

Petitioner Type

Petitioner

Respondent

United States

Respondent Type

Respondent

Heard By

Rehnquist Court (1986-1987)

Decided By

Rehnquist Court (1986-1987)

Opinion

483 U.S. 435 (1987)

Argued

Tuesday, February 24, 1987

Decided

Thursday, June 25, 1987

Advocates

Ribert W. Bruce, Jr. (on behalf of the petitioner)

Eugene R. Fidell (as amicus curiae supporting petitioner)

Charles Fried (on behalf of the respondent)

Facts of the Case

None

Question

None

Conclusion

Decision: 6 votes for United States, 3 vote(s) against
Legal provision: Article 1, Section 8, Paragraph 14: Governance of the Armed Forces

None

United States v. Larionoff

Mon, 05 Jan 2009 17:10:08 +0000

Case Basics

Docket No.

76-413

Petitioner

United States

Petitioner Type

Petitioner

Respondent

Larionoff

Respondent Type

Respondent

Heard By

Burger Court (1975-1981)

Decided By

Burger Court (1975-1981)

Opinion

431 U.S. 864 (1977)

Argued

Wednesday, April 27, 1977

Decided

Monday, June 13, 1977

Facts of the Case

None

Question

None

Conclusion

Decision: 5 votes for Larionoff, 4 vote(s) against
Legal provision:

None

Schlesinger, v. Councilman

Mon, 05 Jan 2009 16:33:09 +0000

Case Basics

Docket No.

73-662

Petitioner

Schlesinger,

Petitioner Type

Petitioner

Respondent

Councilman

Respondent Type

Respondent

Heard By

Burger Court (1972-1975)

Decided By

Burger Court (1972-1975)

Opinion

420 U.S. 738 (1975)

Argued

Tuesday, December 10, 1974

Decided

Tuesday, March 25, 1975

Facts of the Case

None

Question

None

Conclusion

Decision: 6 votes for Schlesinger,, 3 vote(s) against
Legal provision: Uniform Code of Military Justice

None

Mclucas v. Dechamplain

Mon, 05 Jan 2009 16:33:36 +0000

Case Basics

Docket No.

73-1346

Appellee

Dechamplain

Petitioner Type

Appellee

Appellant

Mclucas

Respondent Type

Appellant

Heard By

Burger Court (1972-1975)

Decided By

Burger Court (1972-1975)

Opinion

421 U.S. 21 (1975)

Argued

Monday, December 9, 1974

Decided

Tuesday, April 15, 1975

Facts of the Case

None

Question

None

Conclusion

Decision: 9 votes for Mclucas, 0 vote(s) against
Legal provision: Uniform Code of Military Justice

None

Schick v. Reed

Mon, 05 Jan 2009 16:33:14 +0000

Case Basics

Docket No.

73-5677

Petitioner

Schick

Petitioner Type

Petitioner

Respondent

Reed

Respondent Type

Respondent

Heard By

Burger Court (1972-1975)

Decided By

Burger Court (1972-1975)

Opinion

419 U.S. 256 (1974)

Argued

Wednesday, October 23, 1974

Decided

Monday, December 23, 1974

Facts of the Case

Schick, a master sergeant in the Army, was convicted of murder in a military court and sentenced to death in 1954. President Eisenhower intervened and commuted his sentence in 1960, reducing it to life imprisonment without parole.

Question

Did Eisenhower exceed his powers to commute criminal sentences?

Conclusion

Decision: 6 votes for Reed, 3 vote(s) against
Legal provision: Article 2, Section 2, Paragraph 1: Presidential Pardoning Power

The Court dismissed Schick's claim that Eisenhower's action was invalid because it imposed a condition not authorized by the Uniform Code of Military Justice. Tracing the development and Court's interpretation of the President's powers to commute sentences, Chief Justice Burger argued that since the pardoning power is an enumerated one, any limit on it must be found in the Constitution. Thus, its use does not depend on statutes such as those found in the military code.

Cass v. United States

Mon, 05 Jan 2009 16:34:49 +0000

Case Basics

Docket No.

73-604

Petitioner

Cass

Petitioner Type

Petitioner

Respondent

United States

Respondent Type

Respondent

Consolidation

No. 73-5661

Heard By

Burger Court (1972-1975)

Decided By

Burger Court (1972-1975)

Opinion

417 U.S. 72 (1974)

Argued

Tuesday, April 16, 1974

Decided

Tuesday, May 28, 1974

Facts of the Case

None

Question

None

Conclusion

Decision: 8 votes for United States, 1 vote(s) against
Legal provision: 10 U.S.C. 687

None

Secretary Of The Navy v. Avrech

Mon, 05 Jan 2009 16:34:31 +0000

Case Basics

Docket No.

72-1713

Appellee

Avrech

Petitioner Type

Appellee

Appellant

Secretary Of The Navy

Respondent Type

Appellant

Heard By

Burger Court (1972-1975)

Decided By

Burger Court (1972-1975)

Opinion

418 U.S. 676 (1974)

Argued

Wednesday, February 20, 1974

Decided

Monday, July 8, 1974

Facts of the Case

None

Question

None

Conclusion

Decision: 6 votes for Secretary Of The Navy, 3 vote(s) against
Legal provision: Due Process

None

Parker v. Levy

Mon, 05 Jan 2009 16:34:28 +0000

Case Basics

Docket No.

73-206

Appellee

Levy

Petitioner Type

Appellee

Appellant

Parker

Respondent Type

Appellant

Heard By

Burger Court (1972-1975)

Decided By

Burger Court (1972-1975)

Opinion

417 U.S. 733 (1974)

Argued

Wednesday, February 20, 1974

Decided

Wednesday, June 19, 1974

Facts of the Case

None

Question

None

Conclusion

Decision: 5 votes for Parker, 3 vote(s) against
Legal provision: Due Process

None

Relford v. U.S. Disciplinary Commandant

Mon, 05 Jan 2009 17:19:11 +0000

Case Basics

Docket No.

Petitioner

Isiah Relford

Petitioner Type

Petitioner

Respondent

U.S. Disciplinary Commandant

Respondent Type

Respondent

Heard By

Burger Court (1970-1971)

Decided By

Burger Court (1970-1971)

Opinion

401 U.S. 355 (1971)

Argued

December 15-16, 1970

Decided

Wednesday, February 24, 1971

Advocates

Judson W. Detrick (by appointment of the Court, argued the cause for the petitioner)

Erwin N. Griswold (Solicitor General, Department of Justice, argued the cause for the respondent)

Facts of the Case

None

Question

None

Conclusion

Decision: 9 votes for U.S. Disciplinary Commandant, 0 vote(s) against
Legal provision: Uniform Code of Military Justice

None

O'callahan v. Parker

Mon, 05 Jan 2009 17:40:53 +0000

Case Basics

Docket No.

646

Petitioner

O'callahan

Petitioner Type

Petitioner

Respondent

Parker

Respondent Type

Respondent

Heard By

Warren Court (1967-1969)

Decided By

Warren Court (1967-1969)

Opinion

395 U.S. 258 (1969)

Argued

Thursday, January 23, 1969

Decided

Monday, June 2, 1969

Facts of the Case

None

Question

None

Conclusion

Decision: 5 votes for O'callahan, 3 vote(s) against
Legal provision: Uniform Code of Military Justice

None

United States v. Augenblick

Mon, 05 Jan 2009 17:40:51 +0000

Case Basics

Docket No.

Petitioner

United States

Petitioner Type

Petitioner

Respondent

Augenblick

Respondent Type

Respondent

Heard By

Warren Court (1967-1969)

Decided By

Warren Court (1967-1969)

Opinion

393 U.S. 348 (1969)

Argued

Thursday, November 21, 1968

Decided

Tuesday, January 14, 1969

Facts of the Case

None

Question

None

Conclusion

Decision: 9 votes for United States, 0 vote(s) against
Legal provision: Federal Rules of Evidence

None

California v. Buzard

Mon, 05 Jan 2009 17:44:04 +0000

Case Basics

Docket No.

Petitioner

California

Petitioner Type

Petitioner

Respondent

Buzard

Respondent Type

Respondent

Heard By

Warren Court (1965-1967)

Decided By

Warren Court (1965-1967)

Opinion

382 U.S. 386 (1966)

Argued

Tuesday, November 16, 1965

Decided

Tuesday, January 18, 1966

Facts of the Case

None

Question

None

Conclusion

Decision: 9 votes for Buzard, 0 vote(s) against
Legal provision: 50 U.S.C. 574

None

Snapp v. Neal

Mon, 05 Jan 2009 17:42:41 +0000

Case Basics

Docket No.

Petitioner

Snapp

Respondent

Neal

Heard By

Warren Court (1965-1967)

Decided By

Warren Court (1965-1967)

Opinion

382 U.S. 397 (1966)

Argued

November 15-16, 1965

Decided

Tuesday, January 18, 1966

Facts of the Case

None

Question

None

Conclusion

Decision: 9 votes for Snapp, 0 vote(s) against
Legal provision: 50 U.S.C. 574

None

Grisham v. Hagan

Mon, 05 Jan 2009 16:30:18 +0000

Case Basics

Docket No.

Petitioner

Grisham

Petitioner Type

Petitioner

Respondent

Hagan

Respondent Type

Respondent

Heard By

Warren Court (1958-1962)

Decided By

Warren Court (1958-1962)

Opinion

361 U.S. 278 (1960)

Argued

Thursday, October 22, 1959

Decided

Monday, January 18, 1960

Facts of the Case

None

Question

None

Conclusion

Decision: 7 votes for Grisham, 2 vote(s) against
Legal provision: Uniform Code of Military Justice

None

Kinsella v. Singleton

Mon, 05 Jan 2009 16:30:30 +0000

Case Basics

Docket No.

Appellee

Singleton

Petitioner Type

Appellee

Appellant

Kinsella

Respondent Type

Appellant

Heard By

Warren Court (1958-1962)

Decided By

Warren Court (1958-1962)

Opinion

361 U.S. 234 (1960)

Argued

Thursday, October 22, 1959

Decided

Monday, January 18, 1960

Facts of the Case

None

Question

None

Conclusion

Decision: 7 votes for Singleton, 2 vote(s) against
Legal provision: Uniform Code of Military Justice

None

Mcelroy v. Guagliardo

Mon, 05 Jan 2009 16:30:32 +0000

Case Basics

Docket No.

Petitioner

Mcelroy

Respondent

Guagliardo

Consolidation

No. 37, Wilson v. Bohlender

Heard By

Warren Court (1958-1962)

Decided By

Warren Court (1958-1962)

Opinion

361 U.S. 281 (1960)

Argued

October 21-22, 1959

Decided

Monday, January 18, 1960

Facts of the Case

None

Question

None

Conclusion

Decision: 5 votes for Guagliardo, 4 vote(s) against
Legal provision: Uniform Code of Military Justice

None

Lee v. Madigan

Mon, 05 Jan 2009 16:29:02 +0000

Case Basics

Docket No.

Petitioner

Lee

Respondent

Madigan

Heard By

Warren Court (1958-1962)

Decided By

Warren Court (1958-1962)

Opinion

358 U.S. 228 (1959)

Argued

December 9-10, 1958

Decided

Monday, January 12, 1959

Facts of the Case

None

Question

None

Conclusion

Decision: 6 votes for Lee, 2 vote(s) against
Legal provision: 10 U.S.C. 1564

None

Harmon v. Brucker

Mon, 05 Jan 2009 16:30:06 +0000

Case Basics

Docket No.

Petitioner

Harmon

Respondent

Brucker

Consolidation

No. 141

Heard By

Warren Court (1957-1958)

Decided By

Warren Court (1957-1958)

Opinion

355 U.S. 579 (1958)

Argued

January 14-15, 1958

Decided

Monday, March 3, 1958

Facts of the Case

None

Question

None

Conclusion

Decision: 8 votes for Harmon, 1 vote(s) against
Legal provision: 10 U.S.C. 652

None

Wilson v. Girard

Mon, 05 Jan 2009 16:30:03 +0000

Case Basics

Docket No.

1103

Petitioner

Wilson

Petitioner Type

Petitioner

Respondent

Girard

Respondent Type

Respondent

Consolidation

Girard v. Wilson, No. 1108

Heard By

Warren Court (1957-1958)

Decided By

Warren Court (1957-1958)

Opinion

354 U.S. 524 (1957)

Argued

Monday, July 8, 1957

Decided

Thursday, July 11, 1957

Facts of the Case

None

Question

None

Conclusion

None

Fowler v. Wilkinson

Mon, 05 Jan 2009 16:28:50 +0000

Case Basics

Docket No.

620

Petitioner

Fowler

Petitioner Type

Petitioner

Respondent

Wilkinson

Respondent Type

Respondent

Heard By

Warren Court (1957-1958)

Decided By

Warren Court (1957-1958)

Opinion

353 U.S. 583 (1957)

Argued

Tuesday, April 30, 1957

Decided

Monday, June 3, 1957

Facts of the Case

None

Question

None

Conclusion

Decision: 5 votes for Wilkinson, 4 vote(s) against
Legal provision: Uniform Code of Military Justice

None

Jackson v. Taylor

Mon, 05 Jan 2009 16:28:54 +0000

Case Basics

Docket No.

619

Petitioner

Jackson

Petitioner Type

Petitioner

Respondent

Taylor

Respondent Type

Respondent

Heard By

Warren Court (1957-1958)

Decided By

Warren Court (1957-1958)

Opinion

353 U.S. 569 (1957)

Argued

Tuesday, April 30, 1957

Decided

Monday, June 3, 1957

Facts of the Case

None

Question

None

Conclusion

Decision: 5 votes for Taylor, 4 vote(s) against
Legal provision: Uniform Code of Military Justice

None

Kinsella v. Krueger

Mon, 05 Jan 2009 16:25:43 +0000

Case Basics

Docket No.

713

Petitioner

Kinsella

Petitioner Type

Petitioner

Respondent

Krueger

Respondent Type

Respondent

Heard By

Warren Court (1955-1956)

Decided By

Warren Court (1955-1956)

Opinion

351 U.S. 470 (1956)

Argued

Thursday, May 3, 1956

Decided

Monday, June 11, 1956

Facts of the Case

None

Question

None

Conclusion

Decision: 5 votes for Kinsella, 3 vote(s) against
Legal provision: Uniform Code of Military Justice

None

Reid v. Covert

Mon, 05 Jan 2009 16:25:36 +0000

Location

RAF Station Brize Norton

United Kingdom

51° 45' 57.9168" N, 1° 34' 5.8584" W

See map: Google Maps

Case Basics

Docket No.

701

Appellant

Curtis Reid

Petitioner Type

Appellant

Appellee

Claris Covert

Respondent Type

Appellee

Consolidation

No. 713, Kinsella, Warden v. Krueger

Heard By

Warren Court (1955-1956)

Decided By

Warren Court (1957-1958)

Opinion

354 U.S. 1 (1957)

Argued

Thursday, May 3, 1956

Reargued:

Wednesday, February 27, 1957

Decided

Monday, June 10, 1957

Advocates

J. Lee Rankin (Solicitor General, Department of Justice, reargued the cause for appellant in No. 701 and petitioner in No. 713)

Frederick Bernays Wiener (reargued the cause for appellee in No. 701 and respondent in No. 713)

Facts of the Case

While residing at an airbase in England as a military dependent, Mrs. Clarice Covert was tried and convicted by court-martial for the murder of her husband, a sergeant in the United States Air Force. Mrs. Covert was not a member of the armed forces. Her trial and subsequent conviction by court martial in the United States was authorized under Article 2(11) of the United States Code of Military Justice. Mrs. Covert filed a petition for a writ of habeas corpus in federal district court alleging that her conviction by military authorities had violated her constitutional rights under the Fifth and Sixth Amendments. The district court, holding that “a civilian is entitled to a civilian trial,” granted her petition. The Government appealed directly to the United States Supreme Court.

In its initial decision of the case (351 U.S. 487), the Court held that Mrs. Covert’s military trial was constitutional, that the Constitutional right to a trial by jury did not apply to American citizens tried in foreign lands. Congress, the Court held, could provide for trial by any means it saw fit so long as such means were reasonable and consistent with due process. Justice Felix Frankfurter issued a lengthy reservation, and Chief Justice Earl Warren together with Justices Hugo L. Black and William O. Douglas issued a strong dissent. The Court subsequently granted a petition for rehearing.

Question

Do American citizens abroad retain the rights granted to them by the Bill of Rights thus rendering Article 2(11) of the United State Code of Military Justice unconstitutional?

Conclusion

Decision: 6 votes for Covert, 2 vote(s) against
Legal provision: Uniform Code of Military Justice

Yes. In a plurality opinion written by Justice Hugo L. Black and joined by Chief Justice Earl Warren, and Justices William O. Douglas and William J. Brennan, Jr., the Court held that American citizens outside of the territorial jurisdiction of the United States retain the protections guaranteed by the United States Constitution. Accordingly, the decision below granting Mrs. Covert’s habeas petition was affirmed. Black wrote: “[W]e reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.” Consequently, the plurality asserted that neither a treaty nor the Necessary and Proper Clause could confer upon Congress the sweeping power to try civilians by military court martial.

While a majority of the Court agreed with the ultimate result, they did so for different reasons. Concurring in the decision, Justice Felix Frankfurter rejected the idea that the Necessary and Proper Clause could prevent Congress from mandating the court martial of civilians in all cases. He opposed what he termed a “recourse to the literal words” of the Constitution. Merely to hold that Mrs. Covert could not stand trial before a military tribunal since she was not a member of the armed forces signified too narrow a review. In his opinion, that determination required the Court to assess the Constitution in its entirety and not simply the single provision granting Congress the power to regulate the nation’s land and naval forces. He advocated a balancing test that would require a court to weigh “all the factors involved...in order to decide whether [military dependents] are so closely related to what Congress may allowably deem essential for the effective...regulation of the land and naval forces that they may be subjected to court-martial jurisdiction in...capital cases, when the consequence is loss of [their constitutional] protections.”

Also concurring in the judgment, Justice John Marshall Harlan II essentially agreed with Frankfurter. Accordingly, he saw the determination as “analogous to issues of due process.” Having first determined that military dependents overseas bear a rational connection to the armed forces such that they could be validly subjected to court martial, he then asserted that the analysis turned on a question of what process was due a military dependent under the “particular circumstances of a particular case.” While capital cases such as this one certainly necessitated a full Article III trial, most petty offenses committed by military dependents almost certainly would not. He thus advocated a case-by-case approach, rejecting the sweeping conclusion set forth by the plurality. Since Harlan had originally voted with the majority in the initial decision of this case, his concurrence on rehearing was narrow but significant. Perhaps as a consequence of his earlier vote in the previous term, his opinion on rehearing was considerably less at odds with the arguments set forth in the dissent written by Justice Tom C. Clark and joined by Justice Harold Burton.

In that staunch dissent, Clark gave substantial weight to historical practice. He asserted that the “military has always exercised jurisdiction by court-martial over civilians accompanying armies in time of war,” and that for explicit reasons of policy concerning military morale and discipline, none of the Court’s relevant precedents had ever questioned that authority. He pointed out several troublesome and practical consequences of the Court’s holding. Not least among these were the vast distances between the United States and its various military instillations around the world. By setting forth an overly broad standard, the plurality, argued Clark, had opened the door to a myriad of petty offenses to be tried in the federal court system, thus incurring needles cost, delay, and disruption.

Justice Charles Whitaker took no part in the decision.

Historical Note

Reid v. Covert has the distinction of being the only case in the history of the Supreme Court in which the Court reversed itself on rehearing. In successfully persuading the Court to do so, Mrs. Covert’s lawyer, Colonel Frederick Bernays Wiener, secured for himself a seat among the giants of the legal profession. A seasoned veteran of Supreme Court litigation, Colonel Wiener considered his triumph in Reid v. Covert to be among his greatest professional accomplishments. His oral argument in the case has attained legendary status and remains a preeminent exemplar in the art of persuasion and appellate advocacy.

Matthew Lognion contributed this abstract.