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

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Examining the Civil-Military Divide Through New (Institutional) Lenses: the Influence of the Supreme Court University of Massachusetts Amherst ScholarWorks@UMass Amherst Doctoral Dissertations Dissertations and Theses November 2016 Examining the Civil-Military Divide Through New (Institutional) Lenses: The Influence of the Supreme Court Allen Linken University of Massachusetts Amherst Follow this and additional works at: https://scholarworks.umass.edu/dissertations_2 Part of the American Politics Commons, Courts Commons, Military and Veterans Studies Commons, Military, War, and Peace Commons, Other Legal Studies Commons, Public Law and Legal Theory Commons, and the Supreme Court of the United States Commons Recommended Citation Linken, Allen, "Examining the Civil-Military Divide Through New (Institutional) Lenses: The Influence of the Supreme Court" (2016). Doctoral Dissertations. 759. https://doi.org/10.7275/8980257.0 https://scholarworks.umass.edu/dissertations_2/759 This Open Access Dissertation is brought to you for free and open access by the Dissertations and Theses at ScholarWorks@UMass Amherst. It has been accepted for inclusion in Doctoral Dissertations by an authorized administrator of ScholarWorks@UMass Amherst. For more information, please contact [email protected]. EXAMINING THE CIVIL-MILITARY DIVIDE THROUGH NEW (INSTITUTIONAL) LENSES: THE INFLUENCE OF THE SUPREME COURT A Dissertation Presented by ALLEN E. LINKEN Submitted to the Graduate School of the University of Massachusetts Amherst in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY September 2016 Political Science © Copyright by Allen E. Linken 2016 All Rights Reserved EXAMINING THE CIVIL-MILITARY DIVIDE THROUGH NEW (INSTITUTIONAL) LENSES: THE INFLUENCE OF THE SUPREME COURT A Dissertation Presented by ALLEN E. LINKEN Approved as to style and content by: ________________________________ John Brigham, Chair ________________________________ Jane E. Fountain, Member ________________________________ Jennifer H. Lundquist, Member _____________________________ Jane Fountain, Department Head Political Science DEDICATION To my wife, Lauren, whose love, patience, and support are treasures beyond measure ACKNOWLEDGEMENTS It would not have been possible to write this dissertation without the help and support of the many wonderful people that I am so fortunate to have in my life. I am forever grateful to each of you for your love and encouragement. I am immensely appreciative for my mentor and friend, John Brigham, for offering space to think about law in new and dynamic perspectives while encouraging me to accept and draw strength from the practical experience of my time with the active duty military. This project began by merging my two professional ventures – the military and the law – but the realization that such a merger would strengthen, and not diminish either one of these, independent of the other, would not have occurred, but for the encouragement of John. I also owe special gratitude to Jane Fountain, both in her role of providing thoughtful support for this dissertation, but also for her ability to transform an institution into a living being, allowing it to be seen as a function of how it interacts with the world, and how it is interacted with. I am also thankful for Jen Lundquist. Her sociological examination of the American military helped me shape my questions, and her willingness to support me was very much appreciated. As a committee, I am thankful for their wisdom and advice in helping to shape and define this project, both in terms of scope and substance. Finally, I owe thanks to Sarah Marusek, for her thoughts and advice, which helped me refine the arguments of this work. I am immensely appreciative of my dissertation committee, but I have been mentored and challenged by a great number of remarkable faculty at the University of Massachusetts. When I began to think about my question, and refine my thoughts, I knew that I could go to Daniel Burland. His wealth of experience provided both a v wonderful bond and background for his sage advice. I am specifically thankful to him for helping to refine my understanding of the relationship between chivalry and the military. I am equally indebted to Paul Collins, who generously provided thoughtful advice and suggestions when it was most needed, and especially so concerning measures of examining ideological assimilation. Brian Schaffner and Bruce Desmarais provided immense challenges through their respective courses, which I am also thankful for. Their expectations were high, but they were unfailingly supportive and helpful, many times showing me patience that I likely didn’t deserve. Much of who I consider myself to be as a scholar comes from understanding law through multiple lenses, and I owe a great debt to Daniel LaChance and Alan Gaitenby. Daniel afforded me opportunities to think and to teach, and both he and Alan had open doors that I often passed through, and warm hearts to both chat, and provide thoughtful, candid advice. I am additionally thankful to Sheldon Goldman for his generosity in thought and spirit, and for his friendship. Many thanks are owed to Trish Bachand, Barbara Ciesluk, Donna Dove, Michelle Goncalves, Stephen Marvell, Lori Sadler, and Jennie Southgate for their support. A warm note of thanks is owed to Anne Hildreth. Her support and kindness towards each and every one of her students is something that I aspire to achieve with my students. The source of so many fond memories at UMass were from my peers, who became my colleagues, and most prized of all, friends. These smart, driven, kind people provided much sanity, advice, and mentorship, and my experience would not be the same without them. I am thankful for the friendship of Jim Aaron, Katie Boom, Ivelisse Cuevas-Molina, Alyssa Maraj Grahame, James Heilman, Kaylee Johnson, Mike Kowal, vi Ardeshir Pezeshk, Micah Mintz, Harita Patel, and Ana Maria Ospina Pedraza. I owe deep gratitude to Wouter Van Erve and Melinda Rae Tarsi, who are both friends in the truest sense. Wouter has been, and continues to be, a source of encouragement and wisdom, who I can (and have) called at all hours of the day and night to work on projects or for advice. Melinda, from the moment that I arrived in the program, provided friendly advice and support, but she also had the warmest spirit. While she has undoubtedly provided me more support than I have her, I am honored to call her a friend, and I am grateful to her for so many moments. I owe a special debt of gratitude to two people in my life who provided advice and support on how to be a better lawyer, and a better person. I had the privilege of working for Clyde Haig, LCDR, USN, Retired, and Charles Gibson, CAPT, USN, Retired, and I take lessons from those jobs with me everywhere that I go. I am also appreciative of my family, who have always loved and supported me, encouraging me to strive for greatness in all that I do. vii ABSTRACT EXAMINING THE CIVIL-MILITARY DIVIDE THROUGH NEW (INSTITUTIONAL) LENSES: THE INFLUENCE OF THE SUPREME COURT SEPTEMBER 2016 ALLEN ELLIOT LINKEN, B.A., UNIVERSITY OF ALBANY, STATE UNIVERSITY OF NEW YORK M.P.P., UNIVERSITY OF ALBANY, STATE UNIVERSITY OF NEW YORK J.D., ALBANY LAW SCHOOL M.A., UNIVERSITY OF MASSACHUSETTS AMHERST Ph.D., UNIVERSITY OF MASSACHUSETTS AMHERST Directed by: Professor John Brigham 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. viii 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. KEYWORDS: civil-military relations, military deference doctrine, Supreme Court ix PREFACE There is a certain importance of knowing where someone has been, as it informs a reflection of their perspective. Similarly, it is important to recognize both the epistemological bases and the assumptions which underpin the question, and therefore, the research. This project carries a deep significance for me, personally, because it involves two of my professional loves – the law and the military.
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