Writing for himself, Justice Brett M. Kavanaugh said “the President of the United States, not any federal judge, is the Commander in Chief of the Armed Forces.” He added there was “no basis in this case for employing the judicial power in a manner that military commanders believe would impair the military of the United States as it defends the American people.”
The order put on hold the judgments of a lower court and the U.S. Court of Appeals for the 5th Circuit, which had stopped the administration from making such decisions.
Solicitor General Elizabeth B. Prelogar had asked the Supreme Court to block at least part of the appeals court decision, calling it an “extraordinary and unprecedented intrusion into core military affairs.”
That ruling “not only prohibits the Navy from applying the COVID-19 vaccination requirement to respondents, but also requires the Navy to assign and deploy them without regard to their lack of vaccinations notwithstanding military leaders’ judgment that doing so poses intolerable risks to safety and mission success,” she wrote.
The challengers to the military’s policy are 35 Navy service members assigned to the Naval Special Warfare Command, including 26 Navy SEALs.
The dispute arises from last year’s announcement by Defense Secretary Lloyd Austin that all members of the military must get vaccinated against the coronavirus. All Navy personnel were to receive their first dose of the vaccine or request an exemption by October, and officials indicated those who were not vaccinated could be reassigned, even if they had received an exemption.
A district judge blocked the Navy from enforcing the policy, saying the Navy could achieve “herd immunity” even if some members were not vaccinated, and blocked any retaliation against those requesting religious exemptions.
The court denied the Biden administration’s request to put on hold the part of the order that said deployment decisions couldn’t be made on the basis of vaccination status, and the appeals court turned it down as well.
The service members, represented by the conservative religious law organization First Liberty, said the Navy should not be allowed to discriminate against those who requested a religious exemption.
“The evidence shows that before those requests, the Navy assigned plaintiffs to their current duty stations and even successfully deployed many of them during the pandemic despite vaccination status,” their brief to the Supreme Court said. “But the Navy has not granted a single request for religious accommodation for any service member, though it has granted hundreds of nonreligious exemptions.”
It added, “While judges should not presume to run the military, neither may courts turn a blind eye to violations of the Constitution” or federal law.
Alito and Gorsuch said they would have allowed the injunction to remain in place.
“By rubber-stamping the Government’s request for what it calls a ‘partial stay,’ the Court does a great injustice to the 35 respondents — Navy SEALs and others in the Naval Special Warfare community — who have volunteered to undertake demanding and hazardous duties to defend our country,” Alito wrote. “These individuals appear to have been treated shabbily by the Navy, and the Court brushes all that aside.”
Though compliance with the Pentagon’s requirement is well above 90 percent overall, thousands of service members remain unvaccinated against the coronavirus, pending waiver requests. To date, about 2,200 troops have been dismissed from the military for failing to comply with the mandate. Only the Army National Guard and the Army Reserve have yet to reach their compliance deadlines. Those soldiers have until the end of June to receive a shot or seek an exemption.
The case is Austin v. U.S. Navy SEALS.
Alex Horton contributed to this report.
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