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Examining the Civil-Military Divide Through New (Institutional) Lenses: The Influence of the Supreme Court

Civil-military relations have existed for as long as there has been a military, but only in the last sixty years has research in the field began to examine the relationships between civilian elites and the military. Who controls the military? What level of influence by the military is acceptable in a liberal society, such as the United States? What is the appropriate role of the military? Who serves in the military? What pattern of civil-military relations best ensures the effectiveness of the military instrument? The study of these questions began with examining relationships between the military and the President, and moved to examine, in turn, the relationships between the military and Congress, and then, the military and both the President and Congress, ascertaining that there is a gap, and that it is widening. But, what role does the Judiciary serve in better understanding the relationship between the military and civilian elites? The military is examined through the Judiciary, and more specifically the Supreme Court, to answer this question. This work argues that the Supreme Court, as a rational actor and co-equal branch of government to both the President and the Legislature, is very much involved with the military, and that it has served to reinforce the widening gap found in earlier work. Every Supreme Court case that discusses the military, since the beginning of the All-Volunteer Force in 1973, is examined, and after selecting applicable cases, each case is examined both for what it said, and how it said it. Deferential doctrine that the Court uses when dealing with military cases is deeply analyzed, including discrepancies in majority sizes of military-related Supreme Court cases as against other cases, and that the Court engenders not one, but four separate civil-military gaps. Leveraging new institutionalism and bureaucratic autonomy, this work argues that the military, through its divergent institutions of authority, power, law, and morality, causes the Supreme Court to defer to the military, abdicating their own established standards, serving as both a catalyst to a widening gap, but also as an enabling factor to permit other branches to act similarly.