A common theme on the dockets of some of the most significant cases before the Supreme Court in recent weeks, ranging from affirmative action to LGBTQ rights, is that they have attracted the attention of organizations with ties to the military.
A group that advocates for LGBTQ servicemembers is concerned that the court’s ruling in a high-profile dispute over a graphic designer who wants to refuse to create websites for same-sex weddings may negatively impact gay and lesbian families assigned to bases in rural America. A group of retired generals and admirals is concerned about “civil unrest” in contested elections “leading to military intervention” in a case involving states’ authority to set election rules.
It has long been debatable how much of an impact amicus briefs have on the Supreme Court, especially when organizations are weighing in on issues that may indirectly affect them. However, the justices have occasionally exhibited deference to claims made by former military leaders, such as in a significant affirmative action case in 2003.
In his brief, Phillips made the case that the military suffered during the Vietnam War from a lack of diversity in the officer corps on behalf of retired generals like H. Norman Schwarzkopf and Gen. Wesley Clark. The retired leaders advised encouraging diversity at service academies and in higher education more generally as the best solution.
In two of the most closely followed cases this year, the Supreme Court will once again hear arguments on that same topic. The Supreme Court is considering appeals of Harvard College’s and the University of North Carolina’s discriminatory admissions practices. Military-related amicus briefs have aimed to strengthen both sides.
Oral arguments in those cases from earlier this year discussed the issue. Diversity is “vitally important to our nation’s military,” according to Solicitor General Elizabeth Prelogar, speaking on behalf of the Biden administration. However, some of the more conservative justices on the court, such as Associate Justice Samuel Alito, questioned her with skepticism.
There is no proof that ROTC applicants from states and colleges that already forbid race-conscious admissions are less diverse, according to Patrick Strawbridge, who is representing the group contesting Harvard’s and UNC’s race-conscious admissions policies.
The question in the LGBTQ case is whether anti-discrimination laws, which prohibit companies from turning away customers based on their race, gender, or sexual orientation, may compel a company creating websites to convey a message to which its owner objects. According to Lorie Smith, the website’s designer, she opposes same-sex unions due to her religious beliefs.
In August, the Modern Military Association of America testified before the court that state anti-discrimination laws with carveouts could harm LGBTQ service members. According to the group, service members frequently don’t get to choose where they live. They claimed that if there isn’t another nearby business, an LGBTQ family being turned away from a store in a rural area would present a particularly challenging problem.
A group of retired four-star admirals and generals testified in court in October in a significant voting rights case about how much authority state legislatures should have to set the rules for federal elections that a legal theory embraced by North Carolina Republican lawmakers asserting that state courts should have little role in reviewing such election rules could “undermine election integrity” and risk politicizing the military.
Though it doesn’t always happen, military-related groups frequently intervene in Supreme Court cases. For example, there were no similar briefs last term in the case that resulted in the overturning of Roe v. Wade or in a significant Second Amendment ruling that overturned a New York carry law.
Paul Collins, a professor of legal studies and political science at the University of Massachusetts Amherst, speculated that the influence of such briefs likely depends in part on whether they’re offering a fresh perspective about how a seemingly unrelated issue might have national security implications.
