This is the first of a two-part series on the Supreme Court and the military. Today's article focuses on the military history of the men who later became justices. Part II will focus on the disconnect between the current Court and the American war effort.
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We live in what some scholars call an age of "endless war." Our nation's politics -- and its overburdened budget -- are dominated by military considerations. When will we leave Afghanistan? When will we bomb Iran? Why didn't we go into Libya? What are we going to do about finding jobs, and effective care, for all the troops when they finally make their way home? Meanwhile, for the past 11 years, we have tried futilely to mesh law and war at Guantanamo Bay, Cuba, where our military tribunals have foundered.
America was born by war, split asunder by war, raised to mighty stature by war, and then stung by it again. Ken Burns' brilliant documentary, The War, airing again these past few weeks, is a powerful reminder of that -- and of the sacrifices Americans have consistently been willing to make in the cause of The Cause, whatever it happens to be at the time. I am barely old enough to remember some of the backlash against our troops during the Vietnam War. Today, with penitence in the air, such a reaction is unthinkable.
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.
During the Revolutionary War period, eight of the first 20 justices saw duty against the British. This group includes Henry Brockholst Livingston (1807-1823), who served at the Battles of Saratoga and Ticonderoga, and John Marshall (1801-1835), the architect of the Court's current authority. Marshall was at the Battle of Brandywine and served as an officer at Valley Forge. Even George Washington's young nephew got into the action. Future justice Bushrod Washington (1798-1829) served late in our war of independence.
Two future justices -- James Wayne (1835-1867) and John Catron (1837-1865) -- served in active duty during the War of 1812. No future justices campaigned in the war against Mexico. But, by my count, at least seven future justices served in the Civil War -- four with the Union, three with the Confederacy. Another justice, Henry Brown (1891-1906), hired a substitute to take his place. Two justices, Horace Lurton (1910-1914) and Edward White (1894-1921), fought for the South and became, for a time, Northern prisoners of war.
The most famous solder-turned-justice is Oliver Wendell Holmes Jr. (1902-1932), who served the Union in the Civil War as part of the fabled Twentieth Massachuetts Infantry Regiment. He was wounded three separate times at three separate battles. After his death, recounts longtime Supreme Court historian Jim O'Hara, "they found in his closet a Civil War uniform with a note pinned on it in Holmes' handwriting, saying the blood on the uniform was his."
THE 20TH CENTURY
Uncertain about my findings,* and frustrated by the lack of detail I found online, I reached out for guidance on this topic to the Supreme Court Historical Society, a wonderful Washington institution. The good folks there put me in touch with O'Hara, another wonderful institution. "Most people who write about the Supreme Court write about the cases," O'Hara told me Saturday. "But I'm more interested in the people than in the cases. My interest has always been in the things besides the cases."
Things like the question I had posed about whether a future Supreme Court justice ever fired a weapon in anger on the front lines of a war. The short answer is yes. The long answer is quite complicated. O'Hara, who has been studying the Court history for decades, says he is unaware of any scholarship on this point. But he helped me with the list of justices offered here. (Memo to my friends at C-SPAN: It's time to have someone interview Mr. O'Hara about the history of the Court.)
No future justices ran up San Juan Hill with future president Teddy Roosevelt. But a generation later, in World War I, Harold Burton (1945-1958) served heroically. As an Army Captain, Burton saw heavy action in France and Belgium and was awarded a Purple Heart and a French medal. Six other future justices also served during the Great War -- a high figure when you consider that the United States entered the war on April 6, 1917 and the Armistice was signed on November 11, 1917 -- a period of only 584 days.
This group includes future justices whose names will begin to sound more familiar. Stanley Reed (1938-1957), Hugo Black (1937-1971), Fred Vinson (1946-1953), Frank Murphy (1940-1949), Sherman Minton (1949-1956), and Earl Warren (1953-1969) also served in the Great War. Warren, the future reformer, never made it over to Europe before the War ended. Murphy decided he would stay in Europe after the war -- and, so, briefly studied in England and Ireland.
In World War II, Lewis Powell (1972-1987) worked on ULTRA, the secret Allied coding operation that intercepted German communications. Like his future colleague Stevens, Byron White (1962-1993) also served in Navy intelligence. Potter Stewart (1958-1981) was a member of the Naval Reserve. William Rehnquist (1972-2005) was a sergeant in the Army Air Corps stationed in North Africa as a weather observer. John Marshall Harlan (1955-1971), grandson of the first Justice Harlan (who had served the Union in the Civil War), kept up the family tradition. He served with distinction in Europe.
Neither O'Hara nor I know of any proof that a future justice fired on the enemy during the Second World War. And no future justices served in the Korean War, the Vietnam War, or the first Gulf War -- an astonishing gap. It means that three generations of justices have come and gone since the end of hostilities in 1945, and yet none have seen combat before their tenure on the Court. Never before in our history, or in the history of the United States Supreme Court, has this occurred.
Believe it or not, the federal judiciary does not keep track of how many sitting judges have any military experience. What a pity. Because I believe the president who next gets to appoint a justice -- whether it's President Obama or fellow non-military-veteran Mitt Romney -- ought to appoint a lawyer or a trial judge with wartime military experience, and the closer to the front lines the better. Moreover, the American people deserve to know more about the potential pool of Court appointees before it's time for a president to make a choice.**
In the meantime, you will have to settle for my suggestions. If Mitt Romney wins the presidency, he might consider nominating fellow Republican Senator Lindsey Graham of South Carolina for a spot on the Supreme Court. Graham, more moderate than most of his constituents, was a member of the Air Force and served in Europe as a military prosecutor. He would be a valuable addition to the Supreme Court, especially if he were to succeed another Republican appointee.
And if the president were to be reelected, there are are a number of military-minded choices he could make. For example, how about Charles Swift, the former military lawyer who showed a combination of bravery and integrity we haven't seen on the Court for a long, long time? It was Swift, as a military-court-appointed lawyer for terror suspect Salim Hamdan, who took the United States of America to court over the constitutionality of the military tribunals -- and won. He could sit on my Supreme Court any day.
Then there are potential future justices like Frank Whitney. He's a federal trial judge in North Carolina who has for decades been an Army Reservist. Last year, Judge Whitney left his spot on the bench, temporarily, so he could be deployed in Kuwait to preside over military courts-martial. Then there is retired Air Force colonel William Gunn, who is now general counsel of the Department of Veterans Affairs. Or General Mark Martins, now chief prosecutor at Guantanamo Bay. It's not his fault the tribunals are a mess.
I'm not arguing that the Court -- or the law itself -- should become more militarized. It's already been militarized enough by two successive administrations prosecuting the war on terrorism. And I'm certainly not arguing that the military ought to have more influence on the official life of this country. But 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.
This is a dangerous and self-defeating divide, for not only does it make it more likely that more of our sons and daughters, husbands and wives, mothers and fathers, will be sent into harm's way. It makes it less likely that our soldiers -- and our veterans -- will feel part of a political process that has sent them into combat. In its long history, the Supreme Court has seen some brave, noble former soldiers pass through its gilded doors. If our current war is indeed to be an "endless" one, perhaps it's time for that to happen again.
*My survey of the justices and their military experience is by no means exhaustive so I welcome any information and insight in the comments section. If we can generate enough True Gen about some of these folks, and their service for the country, I will be happy to follow up with another column.
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