By: LTJG Russell Spivak and LCDR Adam Aliano*
Abstract
Jurists broadly defer to the expertise of those in uniform to opine on not only life in uniform, but also the particular operational requirements in place to protect our nation and further its strategic objectives. While there have always been guardrails and limits to this deference, it has been the status quo for much of our nation’s history. In recent years, however, the juridical tides have apparently begun to turn, and the assumption of deference appears to no longer be the courts’ default posture, particularly within certain facets of life that transcend one’s military service. This Article traces the judicial-military relationship through the Nineteenth and Twentieth centuries and highlights evidence of a seeming shift in the relationship in more recent years, namely a greater willingness to intervene in military matters, and proposes a new understanding of when the judiciary may do so in future cases.1
* LTJG Spivak: B.S., Massachusetts Institute of Technology, 2013; J.D., Harvard Law School, 2017. LCDR Aliano: B.S., United States Naval Academy, 2009; J.D., Harvard Law School, 2017. Special thanks to CAPT Andy House for his invaluable insights. Special thanks as well to Penn State Law Review editors Katherine Owens and Drew Weglarz for their tremendous professionalism and top-notch suggestions. We take responsibility for any and all errors. Although the authors are officers in the United States Navy, the opinions and assertions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of the United States Government, the Department of Defense, or the Department of the Navy.
1. The authors take no position whatsoever on the normative value vel non of this change, especially while both remain in the Navy.