# Orloff v. Willoughby > Supreme Court of the United States · April 6, 1953 · 345 U.S. 83 URL: https://www.frixlaw.com/law-library/cases/9420890 ## Case - **Full name:** Orloff v. Willoughby, Commandant - **Court:** Supreme Court of the United States - **Decided:** April 6, 1953 - **Citations:** 345 U.S. 83; 73 S. Ct. 534; 97 L. Ed. 2d 842; 1953 U.S. LEXIS 2331 - **Precedential status:** Published - **Opinion:** Concurring in part by Black - **Judges:** Jackson, Black, Frankfurter - **Cited by:** 873 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9420890 ## How later opinions describe it (automated extraction) - holding that commissioning of officers in the Army was a matter of discretion within the province of the President - holding that assignment decisions in the military are “not within the power” of courts to review - holding that, although the government conceded an issue, “such a concession does not necessarily end our inquiry” - holding discrimination claim by officer against military to be nonjusticiable because denial of commission was properly within military discretion - stating that the Army’s decision not to award commission to, or alternatively to discharge, a medical specialist is not renewable ## Opinion text Mr. Justice Black, with whom Mr. Justice Frankfurter and Mr. Justice Douglas concur, dissenting. I agree with Mr. Justice Frankfurter’s dissent. The United States confesses error in this case and then tells us that since the District Court rendered its erroneous judgment Dr. Orloff has been assigned to some duties that fall within the range of medical activities. This is denied by Dr. Orloff. Apparently admitting that Orloff could not be retained in the Army to do something other than the performance of medical services, the Court nevertheless refuses to send the case back to have this factual controversy determined by the District Court. This Court is usually exceedingly reluctant to resolve disputed facts. I cannot understand why it feels called on to affirm this admittedly erroneous judgment by deciding disputed facts on mere unsworn statements of parties here. And there are other reasons why I think the case should be reversed. I believe the United States was right when it stipulated in the District Court that it could not lawfully utilize Orloff’s services as a physician without giving him a commission. It is true the United States has here backed away from this stipulation. It now claims a right to utilize Orloff as a doctor without granting him a commission and this Court agrees. I do not agree. Since 1847, one hundred and six years ago, Army doctors have served only when they have been commissioned *96 to do so as officers * This long-standing Army practice is in harmony with the law as it exists today. 10 U. S. C. (Supp. IV) § 81-1 and § 91a. The congressional hearings and discussions of the special draft act under which Dr. Orloff was inducted indicate that the law probably never would have been passed but for repeated assurances given the Congress that all doctors drafted and held for service under it would be granted commissions. This, because the law was admitted by its sponsors to be “discriminatory legislation,” singling out the medical profession and its allies, and providing for their induction up to 50 years of age, although other people of this age group could not be called into Army service. This discrimination was justified to Congress only on the ground that doctors made to serve under that law would be given at least a first lieutenant’s grade in accordance with the century-old practice of the Army. 96 Cong. Rec. 13861. I think the Government breaks faith with the Congress and with the doctors of America in drafting a doctor without granting him a commission. It is difficult to think of any sound reason why the Army claims power to use this doctor while denying him the privileges of all other Army doctors. He will be the only doctor denied a commission out of 3,989 doctors drafted under the special law up to last October. And if there was any genuine question about his loyalty to our country, it seems unthinkable that any responsible person in the armed forces would be willing to let him have any part in the treatment of sick and wounded soldiers. If therefore Dr. Orloff is being used as a doctor, the Army must believe that he is dependable despite his failure to answer the question about his past asso *97 ciations. If be is being used, the law entitles him to a commission. This record indicates to me, however, that Dr. Orloff is being held in the Army not to be used as a medical practitioner, but to be treated as a kind of pariah in order to punish him for having claimed a privilege which the Constitution guarantees. Doubtless there are some who would make it a crime for a person to claim this privilege. If an attempt is to be made to punish draftees for asserting constitutional claims, as I can hardly believe it would, it should be done only by an act of Congress. Should such be attempted I would hope that this Court would promptly declare an act to that effect unconstitutional. And if some kind of punishment is to be imposed for asserting constitutional rights, it should not be imposed without a trial according to due process of law. I think it only fair to state that I see nothing in this record from which the slightest inference should be drawn that Dr. Orloff has taken the course he did in order to avoid service in the Army here or abroad. This whole episode appears to me to be one of a too-rapidly increasing number to which Americans in a calmer future are not likely to point with much pride. The Government admits that such has been the practice since the Act of February 11, 1847, 9 Stat. 123 , 124-125. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9420890. Public record. Not legal advice.