On Friday afternoon, the Supreme Court froze an injunction that would have required the Navy to deploy SEALs who refuse to get vaccinated against COVID-19. The decision suggests that SCOTUS has little patience for lower courts’ efforts to seize authority from the armed forces by inserting themselves into the chain of command. One such recent ruling barred the Navy from reassigning the commanding officer of a guided-missile destroyer, an anti-vaxxer who repeatedly defied lawful orders and recklessly exposed dozens to the virus. High-ranking military officials testified that decisions like these undermined military readiness and threatened national security.
It might seem obvious that federal courts cannot order the deployment of individual troops on specific missions—over their superiors’ strenuous objections—by judicial fiat. Yet Friday’s decision was not unanimous. Justice Samuel Alito, joined by Justice Neil Gorsuch, penned a 10-page opinion upbraiding his colleagues for “rubberstamping” the Navy’s alleged infringement on religious liberty. Justice Clarence Thomas also dissented without an opinion. All three justices supported the lower courts’ unprecedented attempt to exercise powers that are constitutionally assigned to the commander-in-chief.
On Monday, I spoke with Eugene R. Fidell to discuss the judicial battle over the limits of religious freedom for anti-vaxxers in uniform. Fidell is one of the nation’s preeminent experts in military justice and an attorney who frequently defends members of the armed forces. He co-founded the National Institute of Military Justice and currently serves as an adjunct professor at New York University School of Law. Our conversation has been edited for length and clarity.
Mark Joseph Stern: What do you make of federal judges ordering the deployment of unvaccinated service members?
Eugene R. Fidell: This is really crazy. The thing that blew my mind was the fact that a court had interfered with the Navy’s plan to relieve the commanding officer of a ship from duty. That is the hard core of management of a military force. Who’s in charge? Who gets to be the commander? And the commanding officer—he’s a mutineer. He was disobeying orders. I see the whole thing as a 21st century mutiny.
Can you elaborate on why it’s so unusual to see a federal judge overrule an officer’s superiors this way?
I’ve spent most of my professional life representing military personnel. Periodically, you get clients who have been relieved for cause, maybe as navigator of a ship or a commanding officer. In the military, you get to be a commanding officer only if your superiors have trust and confidence in you. And those kinds of decisions are essentially nonreviewable. These are very touchy decisions. They have to do with an overall assessment of an individual’s character, patriotism, effectiveness, trustworthiness, and so forth. Courts have a hands-off policy on that kind of decision. It’s the hard core of discretion. To see a court get in the way of the senior levels of the U.S. Navy on who is going to command a warship—that’s startling to anyone who has represented military personnel.
We’ve seen a lot of pretty extreme decisions from lower courts lately. Why were these, in particular, so startling?
Because it goes against the bedrock principle of deference to military managers when dealing with personnel matters. It’s one thing to say “this person got an unfair fitness report” or “there was some error in her record.” But to say, “look, the higher levels have committed such a gross violation that we’re going to force this subordinate on them and force them to retain him or her as commander of a naval unit”? That’s preposterous.
Is there any precedent for this in American history?
A court second-guessing the removal of a commander? No. I cannot think of a precedent for it.
The Supreme Court froze one injunction forcing the Navy to deploy unvaccinated SEALs, but three justices dissented. What was your reaction to Justice Alito’s dissent?
I found it surprising from several perspectives. First, of the nine justices, only two have worn the uniform. One is Stephen Breyer, who was in Army Reserve. The other was Sam Alito, who obtained a commission through the ROTC program at Princeton. He was never called to duty after he graduated and was commissioned, but he went through some years of ROTC. He’s got to know better than this.
What did he get wrong?
He admits the Navy has a compelling interest in vaccination. But then he says the Navy has to pursue that interest through the least restrictive means, and the government didn’t show that. I don’t buy what he’s selling. His least restrictive means analysis bumps into decades of deference that the Supreme Court has paid to military decision-making. If I were arguing this, I’d say the least restrictive means is they didn’t throw people off active duty. Which they could have! But what’s the problem with limiting the deployability of SEALs who have to be ready to deploy on a moment’s notice, or commanding officers who are supposed to be leaders and set a good example? What would have satisfied Alito?
It really is hard to see what would’ve satisfied Alito given his obvious disgust with the Navy here.
He may be annoyed or he may feel that the Navy’s administration of its religious exemption program was a sham. But that’s different from saying it wasn’t the least restrictive means. Unless he’s using least restrictive means as a catchall for a very intrusive judicial review of agency action, which is the polar opposite of deference to military decision-making that the Supreme Court has embraced time and time and time again.
Personally, I don’t think there is a place for a religious exemption. At least not one that is as susceptible to doubtful assertions as the one that seems to be on the table here. One of the litigants said that he’d heard the voice of the almighty speaking to him. I mean, that’s ridiculous as the basis for a religious exemption. Part of the problem is that we take this at face value: If you say it, then it’s gotta be true. You therefore have a right, Captain, to remain in the command of the USS Sam Alito during this litigation. Because you heard a voice in the night.
I mean, we’re in the twilight zone at this point in terms of the management of an organized armed force. I’m speaking as a person who has represented officers in every branch of the service, and I’m usually on the other side of this. I’m usually throwing brickbats, which I will continue to do where it’s justified. But I consider this frivolous litigation.
How has the Supreme Court approached personnel disputes within the armed forces in the past?
The Supreme Court has historically been very loath to get into these things. You know, there are a lot of district courts out there. You’d be really opening Pandora’s box. Oh, you fired the commanding officer of a ship? Call your first witness. The admiral didn’t like you? Call your first witness. Senior officers would be distracted with litigation and discovery and “how come you did this.” The Supreme Court doesn’t want commanders being distracted with litigation.
High-ranking Navy officers said the lower courts’ decisions threaten national security. Do you agree?
Sure. How much does national security have to be threatened before you start to worry about it? My national security meter today is not where it was before the Russians invaded Ukraine. So things can change. And the idea that a court can throw a spanner in the works on some personnel issue and deprive the government of the opportunity to have the best person as commanding officer of a ship is crazy. Do I think that the country is materially more at risk geopolitically without this unnamed ship being able to steam into action than it would be with the proper commanding officer? No, I can’t say that. But that’s not my job. That’s the job of the secretary of the Navy and the chief of naval operations.
The Supreme Court did seem to signal that it won’t let judges insert themselves into the chain of command so egregiously, albeit by a 6–3. Did you draw any comfort from that outcome?
You know, in the military, we expect good order and discipline from everybody. And for people in positions of responsibility, we have to have trust and confidence in them. Both of these are on the line in this litigation. And there are at least some justices who will prioritize claims of religious impulse over national defense in ways that I think are very unnecessary. This was kind of a near miss.