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No. 94-1966

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DWIGHT J. LOVING, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the armed forces

[June 3, 1996]

Justice Stevens , with whom Justice Souter,

The question whether a "service connection" requirement should obtain in capital cases is an open one both because Solorio was not a capital case, and because Solorio's review of the historical materials would seem to undermine any contention that a military tribunal's power to try capital offenses must be as broad as its power to try non capital ones. See id., at 442-446. Moreover, the question is a substantial one because, when the punishment may be death, there are particular reasons to ensure that the men and women of the Armed Forces do not by reason of serving their country receive less protection than the Constitution provides for civilians.

As a consequence of my conclusion that the "service connection" requirement has been satisfied here, I join not only the Court's analysis of the delegation issue, but also its disposition of the case. By joining in the Court's opinion, however, I do not thereby accept the proposition that our decision in Solorio must be understood to apply to capital offenses. Nor do I understand the Court's decision to do so. That question, as I have explained, remains to be decided.