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?
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