Some of the Supreme Court's most influential justices were molded by their experiences on the battlefield. A young John Marshall shepherded a company of starving soldiers through the winter at Valley Forge. Oliver Wendell Holmes survived being shot in the chest at Ball's Bluff, in the neck at Antietam and in the foot at Chancellorsville. Although America's involvement in the First World War spanned only a year and a half, seven future justices celebrated armistice in uniform. And a handful of future tenants of the high court served in the Second World War — including John Marshall Harlan II, who earned the Legion of Merit.
From there the trail went cold: No veterans of Korea, Vietnam or the Gulf War have joined the Supreme Court. John Paul Stevens, who retired in 2010, was the last justice to have served in war. The closest any of the current members come is Justice Samuel A. Alito Jr., who drilled in ROTC at Princeton and then entered the reserves.
Given that we are now nearly 15 years into the war on terror, the absence of a wartime veteran is all the more inexcusable. In this way, the least democratic branch has become even less representative, and mirrors the ever-yawning gap between the military and elite civilian institutions.
This state of affairs isn't terribly surprising. Aspirants to the Supreme Court are now channeled through a highly curated pipeline: They move from an elite law school to a prestigious clerkship to a stint on a federal appeals court. Lawyers step onto this conveyor belt with diverse ethnic and religious backgrounds, and they bring to it diametric ideologies. But they arrive at the court with the same narrow band of adult experiences. Future justices spend all, or nearly all, of their career in the judiciary — or in its immediate orbit as legal academics or solicitors before the court.
Specialization has its value in resolving technical points. But it also leads the high court to issue decisions whose logic appears unnecessarily arcane. This trend bothers liberals and conservatives alike. In an essay for the New Republic, Dahlia Lithwick lamented that the Citizens United opinion was “a beautiful work of abstract reasoning,” but in her view misunderstood how money can distort actual campaigns “on the ground.” And the Washington Post's Michael Gerson recently lauded the late Justice Antonin Scalia for disempowering a judicial class that enforces its views “through mystification and the claim that only it can interpret sacred texts.”
Experience outside the judiciary would help correct this problem. As constitutional scholar Akhil Amar has argued, the court “would benefit from having at least one or two justices” who were prior Cabinet officials or legislators and have “seen up close how presidents actually think … how bills in fact move through Congress.” The court would likewise benefit from adding a soldier.
War imprints soldiers in different ways. It can make veterans deeply skeptical of armed conflict — or, conversely, impart an almost religious conviction in America's military might. It's therefore hard to know whether service will make a justice more or less receptive to arguments empowering the military or government. Justice Hugo Black went both ways. A veteran of the First World War, he wrote the opinion that validated President Franklin D. Roosevelt's internment of Japanese Americans during the Second World War. But he later prevented President Truman from seizing steel mills, which the president argued was necessary for the Korean War effort.
Regardless, a veteran in the chambers would at the very least have experiences to share that would make “clear what legal briefs often obscure: the impact of legal rules on human lives.” This is how Justice Sandra Day O'Connor described the effect of the stories Justice Thurgood Marshall shared with her about his previous life battling Klan intimidation.
A number of veterans could be qualified to fill Scalia's post, but perhaps none more so than Brig. Gen. Mark S. Martins.
Martins began his career as a Ranger-qualified infantry officer, and his past 25 years as a lawyer have found him as often in Humvees with grunts as in conference rooms with suits. Over the course of three deployments to Iraq and another to Afghanistan, he worked at the intersection of warfare and law.
More important is the time Martins has spent overseeing the military commissions at Guantanamo Bay. Since the fall of 2011, as chief prosecutor of these military tribunals, he has had the unenviable task of reforming a legal process long tainted by controversy. He has allowed proceedings to be televised, posted transcripts and motions online, and chosen not to use evidence obtained through coercion.
Democrats and Republicans have already entrenched themselves in advance of the coming political shelling and counter-shelling. Nominating Martins, however, may offer a way to avoid the stalemate. He's not an obvious liberal or an obvious conservative; we don't know his position on abortion, gun control and campaign finance. We also don't know whether Martins would accept a nomination. He already turned down the chance for a promotion in order to finish the Guantanamo trials. In that decision, as throughout his career, he has displayed the pragmatism, humility and intellectual honesty that are the hallmarks of a good justice.
Sam Ayres serves as an enlisted infantryman in the U.S. Army. He worked for General (Ret.) Stanley McChrystal, who oversaw the rule-of-law task force that Brig. Gen. Martins helped lead in Afghanistan. Dan Driscoll served as a cavalry scout officer in the Army.