Johnson Et Al. v. Powell

Background

A group of reservists sought a last-minute court order to stop their deployment to Vietnam. A Justice requested the Solicitor General respond and planned to present the case to the full Court at an October 25 conference. Instead, the military moved the reservists on October 24, which the Justice says prevented the full hearing the applicants expected.

Reasoning

The Justice explained the core question: whether the Constitution’s reference to the “militia” limits putting these men into overseas combat. The Solicitor General argued they should be treated as Ready Reserve members, not militia, citing related cases. The Justice found that the question was not frivolous and deserved full Court consideration, but because the reservists had already been sent abroad, he concluded the case was, in practical effect, moot and denied the requested stay.

Real world impact

The Justice also faulted the Army and the Solicitor General for moving the men despite a court rule meant to prevent transfers while a release petition is pending. The opinion notes earlier Supreme Court decisions on custody and release but does not reach a final judgment on the constitutional question. The practical result is that the deployment went forward and the Court did not make a final ruling on whether the militia clause bars such overseas service.