Cite as: 510 U. S. 163 (1994)
Opinion of Scalia, J.
Instead, the close inspection reflected in the Court's opinion confirms:
"[I]t is the function of the courts to make sure, in cases properly coming before them, that the men and women constituting our Armed Forces are treated as honored members of society whose rights do not turn on the charity of a military commander. . . . A member of the Armed Forces is entitled to equal justice under law not as conceived by the generosity of a commander but as written in the Constitution . . . ." Winters v. United States, 89 S. Ct. 57, 59-60, 21 L. Ed. 2d 80, 84 (1968) (Douglas, J., in chambers).
See also Frontiero v. Richardson, 411 U. S. 677 (1973); Harmon v. Brucker, 355 U. S. 579 (1958); Crawford v. Cushman, 531 F. 2d 1114 (CA2 1976).
Justice Scalia, with whom Justice Thomas joins, concurring in part and concurring in the judgment.
I think the Appointments Clause issue requires somewhat more analysis than the Court provides, and the Due Process Clause issue somewhat less.
I
As to the former: The Court states that these cases differ from Shoemaker v. United States, 147 U. S. 282 (1893), because, after the passage of the Military Justice Act of 1968, military judges could be selected from "hundreds or perhaps thousands of qualified commissioned officers," ante, at 174, so that there is no concern (as there was in Shoemaker, where a single incumbent held the office whose duties were enlarged) that "Congress was trying to both create an office and also select a particular individual to fill the office," ante, at 174. That certainly distinguishes Shoemaker, but I do not see why it leads to the Court's conclusion that therefore "germaneness" analysis need not be conducted here as it was in
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