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Court splits 6-3 on the question of whether the President is Commander in Chief

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The most common genre of Roberts Court opinions under the current configuration will be “bad decisions.” The second most common will be “opinion reaches a banal outcome on a question that would have been uncontroversial 10 years ago with an absolutely batshit insane dissent.” As of now, at least, Austin v. Navy SEALs is one of the latter:

The Supreme Court on Friday evening decided, no, it was not going to needlessly insert itself in the military chain of command above President Joe Biden. The Court’s decision in Austin v. U.S. Navy SEALs 1-26 largely halted a lower court order that permitted certain sailors to defy a direct order.

A group of Navy special operations personnel sought an exemption from the Pentagon’s requirement that all active duty service members get vaccinated against Covid-19, claiming that they should receive a religious exemption. A majority of the Court effectively ruled that, yes, in fact, troops do have to follow orders, including an order to take a vaccine.

The decision is undeniably a win for the balance of power between the executive branch and the judiciary that has prevailed for many decades. But the fact that the Court had to weigh in on this at all — not to mention that three justices, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, dissented from the majority — is a worrisome sign about America’s judiciary.

As Justice Brett Kavanaugh explained in a brief opinion laying out why the lower court erred, this court “in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments.” Had the Court ruled the other way in SEALs, it would have effectively placed itself at the apex of the military’s chain of command, displacing Biden as commander-in-chief.

This is an era in which even victories are worrisome.

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