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Reid v. Covert | The Oyez Project at IIT Chicago-Kent College of Law

REID V. COVERT
Term: 1950-1959 1955

1956

Location: RAF Station Brize Norton

Facts of the Case
While residing at an airbase in England as a military dependent, Mrs. Clarice Covert
was tried and convicted by court-martial for the murder of her husband, a sergeant in
the United States Air Force. Mrs. Covert was not a member of the armed forces. Her
trial and subsequent conviction by court martial in the United States was authorized
under Article 2(11) of the United States Code of Military Justice. Mrs. Covert filed a
petition for a writ of habeas corpus in federal district court alleging that her conviction
by military authorities had violated her constitutional rights under the Fifth and Sixth
Amendments. The district court, holding that a civilian is entitled to a civilian trial,
granted her petition. The Government appealed directly to the United States
Supreme Court.
In its initial decision of the case (351 U.S. 487), the Court held that Mrs. Coverts
military trial was constitutional, that the Constitutional right to a trial by jury did not
apply to American citizens tried in foreign lands. Congress, the Court held, could
provide for trial by any means it saw fit so long as such means were reasonable and
consistent with due process. Justice Felix Frankfurter issued a lengthy reservation,
and Chief Justice Earl Warren together with Justices Hugo L. Black and William O.
Douglas issued a strong dissent. The Court subsequently granted a petition for
rehearing.
Question
Do American citizens abroad retain the rights granted to them by the Bill of Rights
thus rendering Article 2(11) of the United State Code of Military Justice
unconstitutional?
Conclusion
Decision: 6 votes for Covert, 2 vote(s) against
Legal provision: Uniform Code of Military Justice
Yes. In a plurality opinion written by Justice Hugo L. Black and joined by Chief
Justice Earl Warren, and Justices William O. Douglas and William J. Brennan, Jr.,
the Court held that American citizens outside of the territorial jurisdiction of the
United States retain the protections guaranteed by the United States Constitution.
Accordingly, the decision below granting Mrs. Coverts habeas petition was affirmed.
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Case Basics
Dock et No.
701
Appellant
Curtis Reid
Appellee
Claris Covert
Consolidation
No. 713, Kinsella, Warden v.
Krueger
Heard By
Warren Court (1955-1956)
Decided By
Warren Court (1957-1958)
Opinion
354 U.S. 1 (1957)
Argued
Thursday, May 3, 1956
Reargued:
Wednesday, February 27,
1957
Decided
Monday, June 10, 1957
Advocates
J. Lee Rank in

(Solicitor General, Department of

Justice, reargued the cause for
appellant in No. 701 and petitioner in
No. 713)

Frederick Bernays Wiener

(reargued the cause for appellee in No.

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Reid v. Covert | The Oyez Project at IIT Chicago-Kent College of Law

701 and respondent in No. 713)

Black wrote: [W]e reject the idea that when the United States acts against citizens
abroad it can do so free of the Bill of Rights. The United States is entirely a creature
Tags
of the Constitution. Its power and authority have no other source. It can only act in
accordance with all the limitations imposed by the Constitution. When the
Military Residency
Government reaches out to punish a citizen who is abroad, the shield which the Bill
of Rights and other parts of the Constitution provide to protect his life and liberty
Requirements
should not be stripped away just because he happens to be in another land.
Consequently, the plurality asserted that neither a treaty nor the Necessary and
Proper Clause could confer upon Congress the sweeping power to try civilians by military court martial.

Civil Rights

While a majority of the Court agreed with the ultimate result, they did so for different reasons. Concurring in the
decision, Justice Felix Frankfurter rejected the idea that the Necessary and Proper Clause could prevent Congress from
mandating the court martial of civilians in all cases. He opposed what he termed a recourse to the literal words of the
Constitution. Merely to hold that Mrs. Covert could not stand trial before a military tribunal since she was not a member
of the armed forces signified too narrow a review. In his opinion, that determination required the Court to assess the
Constitution in its entirety and not simply the single provision granting Congress the power to regulate the nations land
and naval forces. He advocated a balancing test that would require a court to weigh all the factors involved...in order to
decide whether [military dependents] are so closely related to what Congress may allowably deem essential for the
effective...regulation of the land and naval forces that they may be subjected to court-martial jurisdiction in...capital
cases, when the consequence is loss of [their constitutional] protections.
Also concurring in the judgment, Justice John Marshall Harlan II essentially agreed with Frankfurter. Accordingly, he
saw the determination as analogous to issues of due process. Having first determined that military dependents
overseas bear a rational connection to the armed forces such that they could be validly subjected to court martial, he
then asserted that the analysis turned on a question of what process was due a military dependent under the particular
circumstances of a particular case. While capital cases such as this one certainly necessitated a full Article III trial,
most petty offenses committed by military dependents almost certainly would not. He thus advocated a case-by-case
approach, rejecting the sweeping conclusion set forth by the plurality. Since Harlan had originally voted with the majority
in the initial decision of this case, his concurrence on rehearing was narrow but significant. Perhaps as a consequence
of his earlier vote in the previous term, his opinion on rehearing was considerably less at odds with the arguments set
forth in the dissent written by Justice Tom C. Clark and joined by Justice Harold Burton.
In that staunch dissent, Clark gave substantial weight to historical practice. He asserted that the military has always
exercised jurisdiction by court-martial over civilians accompanying armies in time of war, and that for explicit reasons of
policy concerning military morale and discipline, none of the Courts relevant precedents had ever questioned that
authority. He pointed out several troublesome and practical consequences of the Courts holding. Not least among these
were the vast distances between the United States and its various military instillations around the world. By setting forth
an overly broad standard, the plurality, argued Clark, had opened the door to a myriad of petty offenses to be tried in the
federal court system, thus incurring needless cost, delay, and disruption.
Justice Charles Whitaker took no part in the decision.
Historical Note
Reid v. Covert has the distinction of being the only case in the history of the Supreme Court in which the Court reversed
itself on rehearing. In successfully persuading the Court to do so, Mrs. Coverts lawyer, Colonel Frederick Bernays
Wiener, secured for himself a seat among the giants of the legal profession. A seasoned veteran of Supreme Court
litigation, Colonel Wiener considered his triumph in Reid v. Covert to be among his greatest professional
accomplishments. His oral argument in the case has attained legendary status and remains a preeminent exemplar in
the art of persuasion and appellate advocacy.
Matthew Lognion contributed this abstract.

Warren

Black

Frankfurter

Douglas

http://www.oyez.org/cases/1950-1959/1955/1955_701_2

Harlan

Brennan

Burton

Clark

Whittaker

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Reid v. Covert | The Oyez Project at IIT Chicago-Kent College of Law

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REID v. COVERT. The Oyez Project at IIT Chicago-Kent College of Law . 25 November 2014.
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