Read the document – The New York Times

Case 1:26-cv-00081-RJL Document 37 Filed 02/12/26

Page 9 of 29

pose any impediment to reaching the merits of Senator Kelly’s First Amendment claim.

How so?

i. Availability of Judicial Review

“The justiciability of a claim is not a question of subject matter jurisdiction, but rather of the court’s competence to address a particular claim.” Reilly v. Sec’y of Navy, 12 F. Supp. 3d 125, 139 (D.D.C. 2014). Justiciability turns on the propriety “of the subject matter for judicial consideration,” including “whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” Id. (quoting Baker v. Carr, 369 U.S. 186, 198 (1962)).
Speaking broadly, federal courts grant substantial deference to the military when it acts within its sphere of authority. See Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988); Austin v. U.S. Navy Seals 1-26, 142 S. Ct. 1301, 1302 (2022) (Kavanaugh, J., concurring). Courts are rightly wary of second-guessing “professional military judgments” as to “the composition, training, equipping, and control of a military force.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973). These kinds of discretionary personnel decisions regarding “who should be allowed to serve on active duty, and in what capacity” are typically nonjusticiable. Fisher v. United States, 402 F.3d 1167, 1180–81 (Fed. Cir. 2005) (en banc); see also Caez v. United States, 815 F. Supp. 2d 184, 188 n.4 (D.D.C. 2011); Reilly, 12 F. Supp. 3d at 138- 40. After all, “judges are not given the task of running the military.” Piersall v. Winter, 435 F.3d 319, 322 (D.C. Cir. 2006) (cleaned up).
Military personnel decisions, however, are not entirely exempt from judicial review.

For instance, courts generally hear constitutional claims arising from military personnel

9