Amicus Briefs, Retired Senior Military Officers, and the Judiciary: A Unique "Friend of the Court," in the Constitutional Construct of Civil and Military Relations

Military organizations, and particular, small groups of retired flag officers (generals and admirals) have increasingly filed amicus briefs to the United States Supreme Court and the federal courts of appeal. Most prominent among these are the “Becton Brief,” a group of largely Vietnam Veterans who were concerned that the Court would end any ability of the higher education system to consider race in admissions. Named after Julius Becton, a retired Army general, Vietnam Veteran, and former FEMA director, the brief’s signatories included General Norman Schwarzkopf and Admiral William Crowe, the former chairman of the joint chiefs of staff. The brief had an impact on the Court’s shaping of Grutter v. Bollinger and since that time, other retired flag officers have tried to similarly shape judicial decisions through the “friend of the court” process. This past year, there were four amicus briefs in two significant decisions, Trump v. United States and Students for Fair Admissions Inc., v. President and Fellows of Harvard College. The quality of the four briefs, however, is marginal at best. The amici in all four of these instances are different than every other amicus signatory in two fundamental ways which gives rise to the need to analyze the dynamic of senior retired officers filing amicus briefs. First, when these amici argue that a constitutional or legal decision will have national security considerations, they have a practically unrivalled gravitas to do so. Secondly, they remain a part of the military establishment and are subject to presidential orders. This article does not argue for an end to the retired flag officer amicus brief and indeed, is premised on the argument that participation in the nation’s political and legal processes is an important right. After all, retired military amicus briefs can, in theory, prevent the misuse of “national security” by the government to argue a position on presidential authority. The article is based on the argument that the unscholarly nature and often skirting of history and law in the briefs is neither helpful to the courts or the status of the military and there should be a demand for amicus briefs with scholarly integrity to them.