Navy Vaccine Ruling Shows Kavanaugh Thought Process
By Philip Howe (April 13, 2022)
On March 25, the U.S. Supreme Court issued a short but significant decision in Austin, Secretary of Defense v. Navy SEALS, affirming that the courts will not enter the military chain of command. This decision permitted the U.S. Navy to proceed to require COVID-19 vaccinations except for medical or religious exemptions while the underlying action, which challenges that requirement, proceeds.
The majority included Justices John Roberts, Elena Kagan, Stephen Breyer and Sonia Sotomayor in an unsigned 13-line decision reversing the U.S. Court of Appeals for the Fifth Circuit, which had stayed the requirement. Justice Brett Kavanaugh concurred with an opinion of less than two pages, but it made significant points regarding the authority of the executive branch of government in military affairs.
Justice Samuel Alito, joined by Justice Neil Gorsuch, wrote a more lengthy dissent. Justice Clarence Thomas stated simply that he would have denied the U.S. Department of Defense's appeal. Justice Amy Barrett's position is not indicated in the decision as published. The Majority Decision The Secretary of Defense's application for a partial stay was granted. The U.S. District Court for the Northern District of Texas, affirmed by the Fifth Circuit, had precluded the Navy from considering the vaccination status of 35 Navy SEALS in making deployment, assignment and other operational decisions.
In a brief concurrence, Justice Kavanaugh referred to the "bedrock constitutional principle 'courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.' "  He cited the Supreme Court's 1973 decision in Gilligan v. Morgan, which said that "Composition, training, equipping and control of the military are essentially military judgments." The district court had relied on the Religious Freedom Restoration Act, Title 42 of the U.S. Code, Section 2000 bb – 1 (b). Justice Kavanaugh wrote that the RFRA does not justify judicial intrusion into military affairs in this case. The Navy has an extraordinarily compelling interest in maintaining strategic and operational control over the assignment and deployment of all special warfare personnel, including control over decisions about military readiness.
While the concurrence is brief, it is strong and clear. It indicates how Justice Kavanaugh is likely to rule should this issue come again before the court.
Justice Alito's dissent asserted the Navy SEALs have been "treated shabbily" by the Navy, who had told its service members they could apply for religious exemptions from the vaccine requirement. Justice Alito maintained that this was "theater" and almost all requests were denied. Justice Alito wrote that the government is forbidden from burdening a person's exercise of religion unless the government can demonstrate a compelling interest in obtaining this breadth of equitable relief pending the appeal of the underlying action. The government has not done so.
The pivotal issue of this Navy SEALs case is the religious exemption. The 35 SEALS claim that requiring them to receive COVID-19 vaccinations restricts their freedom of religion under the RFRA. The RFRA does not define what constitutes a religion. In the 2014 Supreme Court case Burwell v. Hobby Lobby, cited in Justice Alito's dissent, Hobby Lobby had objected to the Affordable Care Act requirement that they provide insurance coverage for birth control. The petitioners were Christians and claimed that they have a strong religious belief that life begins at conception. They asserted that it was immoral for them to provide coverage which would be connected to the destruction of an embryo.
However, nothing in the Navy SEALS decision reveals the religions of the 35 petitioners. Further, there is no indication of how requiring their vaccinations against COVID-19 would restrict the exercise of their religions. Nor is it clear if the petitioners have received vaccinations against many other diseases required by the Navy. Indeed, religious leaders of the major faiths, including the Pope, have strongly endorsed COVID-19 vaccinations and the Pope has referred to receiving COVID-19 vaccinations as a "moral obligation." Interestingly, the court made no mention of its two previous vaccine decisions of Jan. 13, 2022, one upholding the vaccine mandate for employees of medical institutions which receive Medicare funds and one striking down the mandate for employers with 100 or more employees.
However, Justice Kavanaugh's concurrence in the Navy SEALS case is consistent with his position in the above Medicare decision. In it, he supported requiring a vaccine mandate for persons who worked in those medical institutions as it was aimed at a particular, well-defined profession of health care providers for whom there was good reason not to spread the virus and to avoid contracting it themselves. In the Occupational Safety and Health Administration decision, he would not support the vaccine mandate for all employers with over 100 employees as that was too broad.
It seems that Justice Kavanaugh was persuaded on vaccine mandates which are tailored as in the SEALS case to Navy personnel, particularly those who will see combat. This provides an interesting insight into Justice Kavanaugh's judicial thought process with regard to the exercise of executive power. He can support it if it is specific, clear, grounded in fact and logic.
He wrote in his concurrence, at page 2, "Sending ships into combat without maximizing the crew's odds of success, such as would be the case with ship deficiencies in ordnance, radar, working weapons or the means to reliably accomplish the mission, is dereliction of duty. The same applies to ordering unvaccinated personnel into an environment in which they endanger their lives, the lives of others and compromise accomplishment of essential missions."
This is helpful to know as Justice Kavanaugh is young and would seem to have a long future on the court. Justice Kavanaugh, a conservative Trump nominee, joined the court after a tumultuous dispute in the Senate between liberals and conservatives. But, now in two of the three vaccine mandate cases, the Medicare and the Navy SEALS cases, he has voted with the liberal Justices Breyer, Kagan and Sotomayor, and joined with Chief Justice Roberts, who occasionally votes with them.
The takeaway is that, in order to persuade Justice Kavanaugh, your position must be sound in fact and law, and your argument should cite many practical applications such as Navy SEALS going into combat without COVID-19 vaccinations and endangering their mission.
Justice Ketanji Brown Jackson has recently been confirmed to the U.S. Supreme Court and will assume her duties on July 1, 2022, after Justice Breyer retires at the end of this term. However, given Justice Brown's history as an attorney and on the bench, it is likely that her votes will, on key issues, continue the tradition of Justice Breyer. As a result, the ideological composition of the court will not change. The future of issues, such as public health crises including COVID-19, gun control, climate change, elections and gerrymandering to name a few, will likely come before the Supreme Court, if not this next term, in the not too distant future. Given the present composition of the court, Justices Roberts and Kavanaugh have emerged as potential swing votes. But, they will be persuaded only with factually specific, evidence-based detail and practical logic.
Philip M. Howe is an attorney at Philip Howe Law. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm Law 360, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  Austin, Secretary of Defense v. Navy SEALS, 596 U.S. ____.  Id.  Department of the Navy v. Egan, 484 U.S. 518, 530 (1988).  Austin, Secretary of Defense v. Navy SEALS.  Id.  Id.  Id.  Id.  Burwell v. Hobby Lobby, 573 U.S. 682 (2014).
 Hobby Lobby, supra, page 723.  WebMD, January 11, 2022.  Joseph R. Biden, President v. Missouri, 595 U.S. ____ ("Medicare decision") and National Federation of Independent Business et al. v. O.S.H.A., 595 U.S. ______ ("O.S.H.A. decision").