Many of our presidents have had combat experience. John F. Kennedy was a hero. So was Andrew Jackson. In 2004, John Kerry came just a few votes short in Ohio of making the list of presidents with impressive military records. Neither President Barack Obama nor Vice President Joe Biden have any military experience, but, today, there are approximately 90 veterans serving in the House of Representatives. There are approximately 25 veterans now in the U.S. Senate. Those numbers seem high. But they are actually the lowest they have been in generations.
Our nation's judges, too, have long had ties to military service. And, from time to time, so has the United States Supreme Court. This, however, is not one of those times. For the first time since 1936, the year before former Army Captain Hugo Black ascended to the bench, there are no current justices with any active, wartime military experience. The last justice with such experience -- in naval intelligence, during the Second World War -- was John Paul Stevens. He retired from the bench in 2010.
There is nothing necessarily wrong with this. We don't need, or necessarily want, our judges to be former soldiers.
And our justices should never be cheerleaders for
an administration's war effort, or for the Pentagon, or for the vast industrial complex which accompanies it. But
military law, and constitutional law involving military issues, are often before the justices. And the concept of an "endless war" on terrorism suggests an "endless" stream of military-type cases involving the rights of foreign detainees.
Just think for a moment about what a military perspective at the Court might have offered the terror-law debate over the past decade. And just think of how cloistered the current Court is today: In addition to their lack of active military service, none of the justices have ever held elective office, and only one, Justice Sonia Sotomayor, even has any experience as a federal trial court judge. The Court still needs more diversity in many ways, but none more so than diversity of background and experience. It was not always this way.
THE FIRST WARS OF THE REPUBLIC
There have been 112 justices of the United States Supreme Court. By my count, 71 of them had no military experience or training. Of the 41 other justices, there have been two -- Smith Thompson (who sat on the Court from 1823-1843) and Levi Woodbury (1841-1845) -- who served as Secretaries of War. William Taft (1921-1930) was a Secretary of War (and Commander-in-Chief!) before he ascended to the bench. Harlan Stone (1941-1946) served on a War Department Board of Inquiry. Another future justice attended West Point.
Of the remaining justices, many never served in active duty during wartime or fired at an enemy. This group includes three members of the current Court. Justice Anthony Kennedy, for example, briefly served (in 1961) 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, although there isn't much information about his service.