Written by William & Mary Student Scott Krystiniak

With the recent passing of Justice Antonin Scalia,[1] the makeup of “the highest court in the land” became subject to considerable change. Unsurprisingly, most discussion on the topic of Justice Scalia’s replacement on the Court concerned which President would appoint the next justice and what ideological or political tendencies that next justice might have.

Merrick Garland is now in line to take up Justice Scalia’s seat; however, his nomination is still pending Senate confirmation. But no matter who ultimately fills the vacant position, one fact remains. The last six years marks the longest period in the history of the Supreme Court in which no sitting justice has any active, wartime military service.

When former Justice John Paul Stevens resigned from the Court in 2010, his retirement marked only the second time in history that no sitting United States Supreme Court justice had any active, wartime military service.[2] Moreover, the first time this phenomenon occurred was in 1937 and lasted only briefly.[3]

Despite a recent paucity of active, wartime military experience,[4] a look back through the history of the Court shows a significant military presence spanning four centuries.[5]

Military veterans who actively served have been a staple on the Court since its inception. After the American Revolution, military servicemembers who once led on the battlefield also found leadership roles on the Supreme Court. Associate Justice James Wilson, who served as a Brigadier General during the Revolution, was appointed to the Court by President George Washington after the Court came into existence under the Judiciary Act of 1789.

At the turn of the Nineteenth Century, John Marshall led the Court as Chief Justice and would hold the position for over three decades. Although he is mostly celebrated as the shepherd of judicial review,[6] John Marshall also served under the command of George Washington in the Continental Army.

Later in the Nineteenth Century, Civil War veterans also transitioned into roles with the Court.  For example, famed Associate Justice Oliver Wendell Holmes, Jr. fought in numerous battles for the Union forces, including Wilderness and Antietem. His theories on legal realism and legal positivism were said to be profoundly influenced by his experiences in the Civil War.[7]

Meanwhile, Associate Justice William Burnham Wood’s abolitionist views inspired him to leave a position with the Ohio state legislature to join the Union side as a lieutenant colonel. Stanley Mathews also left a public service position when he joined the Union Army after resigning from his position as a United States Attorney in Ohio.

The Twentieth Century continued the trend of servicemembers with active, wartime experience taking on positions with the Court. Prior to his career as an Associate Justice and a long tenure in executive positions, Frank Murphy fought in World War I as a Captain in the U.S. Army. Furthermore, former Chief Justices Fred Vinson and Earl Warren also served the Army during World War I.

The late Twentieth and early Twenty-First Century saw the rise of World War II veterans in the Court. Associate Justice Byron White received two Bronze Stars for his role as an intelligence officer in the United States Navy in the Pacific Theatre. His peer on the Court, Lewis F. Powell, Jr., also served as an intelligence officer in the Army and spent the wartime in England and North Africa. John Paul Stevens, meanwhile, received a Bronze Star for his service as a cryptographer with the Navy. His code-breaking team helped bring down the Japanese military leader responsible for the bombing of Pearl Harbor.

Altogether, over one third of all Supreme Court justices served in the military with the majority of those serving in times of war.[8]  Such ubiquity likely has many causes, including the simple fact that the United States has engaged in numerous conflicts both home and abroad.[9]

However, military servicemembers are also an important demographic that lends both great experience and diversity to any group or organization, including the highest court in the land. These individuals are known for their resilience, discipline, focus, strategic orientation, and motivation.[10] They can use their skills and diverse experience to add considerably, especially to a group of Supreme Court justices with otherwise startlingly similar credentials.[11]

In addition to these advantages, a wartime veteran justice would also fulfill a large void in the Court. Journalist Andrew Cohen wrote that the “The Court’s lack of any connection to military service is emblematic of the larger disconnect between our military personnel and the public officials who both send them off to war and then greet them when they return.”[12] Military leadership at the Supreme Court would do well to repair such a disconnect.[13]

With Merrick Garland’s nomination still pending and many of the other justices likely nearing retirement, the Supreme Court has ample room for change. A justice with considerable military experience would be a welcome addition. History tells us this much.

 

 

[1] Sincerest condolences are due to the family and friends of the late United States Supreme Court Justice Antonin Scalia. Looking beyond any ideological and political beliefs, Justice Scalia served the Court and this nation with unwavering ardor. His devotion to and time spent in public service is nothing short of admirable.

[2] Andrew Cohen, None of the Supreme Court Justices Has Battle Experience, The Atlantic (Aug. 13, 2012), http://www.theatlantic.com/national/archive/2012/08/none-of-the-supreme-court-justices-has-battle-experience/260973/.

[3] Id.

[4] Justice Anthony Kennedy briefly served in the California Army National Guard. Justice Samuel Alito, a ROTC candidate during college, enlisted in the Army Reserves in 1972. Justice Stephen Breyer also was briefly in the Army, as an undergraduate in 1957.

[5] This post does not provide a complete list of justices who served in the United States military. A complete report on Supreme Court Justices with military experience can be found in: Susan Navarro Smelcer, Cong. Research Serv., R40802, Supreme Court Justices: Demographic Characteristics, Professional Experience, and Legal Education, 1789-2009 (2009) available at http://fpc.state.gov/documents/organization/132310.pdf.

[6] See Marbury v. Madison, 5 U.S. 137 (1803).

[7] Oliver Wendell Holmes, Jr., The Common Law (Brown and Company, 1st ed. 1881).

[8] See Susan Navarro Smelcer, supra note 5, at 24-26.

[9] Id.

[10] Kerrie MacPherson, From the Battlefield to the Corner Office: Five Reasons Why Veterans Make Great Business Leaders, Huffpost Impact (Nov. 18, 2013, 10:48 AM), http://www.huffingtonpost.com/kerrie-macpherson/veterans-business-leaders_b_4296186.html; Drew Greenblatt, 10 Reasons to Hire a Veteran Today, Inc. (Nov. 11, 2014), http://www.inc.com/drew-greenblatt/ten-reasons-to-hire-a-veteran-today.html.

[11] Currently, all eight of the sitting justices were judges prior to their nomination to the Court. They also all attended either Harvard or Yale for Law School. Akhil Reed Amar, Clones on the Court, The Atlantic (Apr. 2015), http://www.theatlantic.com/magazine/archive/2015/04/clones-on-the-court/386252/.  Merrick Garland is no exception. He attended Harvard as both an undergraduate and a law student.

[12] Andrew Cohen, supra note 2.

[13] Id.