Supreme Court Refuses to Consider Case Challenging Male-Only Draft Registration—but Suggests it Might Revisit the Issue in the Future

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Today the Supreme Court ruled not to hear a case contesting the constitutionality of registration for men only. However, a concurring opinion from three judges indicated that the Court might revisit this issue in the future.

The case in question is a judgment of the Fifth Circuit in National Coalition for Men v. Selective Service System. There, the lower court justices upheld the male-only call, but emphasized that they only upheld it out of consideration for the 1981 Supreme Court ruling in Rostker v Goldberg (which upheld the male-only entry against an earlier challenge) . The judges of the fifth district also found that they continue to use Rostker, even though the “factual predicate” (the inability of women for combat positions in the military) on which this judgment is based no longer applies.

Today, three Supreme Court justices – Sonia Sotomayor, Stephen Breyer, and Brett Kavanaugh – joined a statement written by Sotomayor that strongly suggests they, too, believe Rostker has become an anachronism:

The fifth amendment to the United States Constitution the federal government prohibits discrimination the basis of gender is missing a ““Extremely convincing reason”Cation.’Meetings V. Morales-Santana, 582 USA ___, ___ (2017) (Slip op., At 9) (quotation United States V. Virginia, 518 u. S. 515, 531 (1996)) …in the Rostker V. Goldberg, 453 US 57 (1981), upheld this court the gender-specific registration obligation of the law against a Challenge equal protection, invoking the fact that women are women“excluded from the fight” roles and therefore “would not be” needed in a design. ” I would., at 77.

The role of women in the military has changed dramaticallyactive since then. As of 1991, thousands of women have have served with honors in a variety of battles Roles, from operating military aircraft and naval ships to Participation in boots-on-the-ground infantry missions…. Women have passed the de of the militaryConducting tests to U.S. Army Rangers, Navy SEALs, and green berets … As of 2015 there are no more closed to all positions in the United States Armed Forces Women …

Then why did the three judges vote against taking this case? Because they hope Congress will fix the problem first:

However, the petitioners are not the only ones asking whether a purely male registration request, rewith the role women can and already play in the world modern military. In 2016, Congress created the National Military, National and Civil Service Commission (NCMNPS) and instructs it with study whether Selective The service registration should be carried out “independently of” Sex. “National Defense Authorization Act for the fiscal year 2017, §§551 (a), 555 (c) (2) (A), 130 Stat. 2130, 2135. On March 25, 2020, the Commission published its final decisionPort in which it “eliminates.” recommended[ing] only men Registration. “Inspired to Serve: The Final Report of the[NCMNPS] 111 … Just a few months ago, Senate Armed Services Committee held a hearing on the matterHafen, where Chairman Jack Reed expressed his “hope” that a gender-neutral registration “incorpoincluded in the next draft law on national defense … “

It remains to be seen, of course, whether Congress will Termination of gender-specific registration under the Military Selective Services Act. But for now, at least, the Court’s longstanding deference to Congress on national defense and military affairs warns against granting a review while Congress is actively considering the issue.

I testified before the commission to which the judges are referring back in 2018. I urged them to recommend the complete abolition of conscription and to oppose any other form of compulsory national service, be it civil or military. The commission, peppered with national service advocates, proceeded differently in its final report, at least with regard to military service. Instead of abolishing the draft registration, they recommend making it gender neutral.

It remains to be seen whether Congress will adopt this approach. It is quite possible that such a reform will be supported by a majority in both the House of Representatives and the Senate. But Congress has many other topics on its plate right now and it might prefer to focus its energies elsewhere.

If Congress fails to act in the near future, Sotomayor’s approval suggests that the court will revisit the issue in the next few years and that – if that happens – Rostker may be overridden. Here it is noteworthy that the Conservative Judge Kavanaugh followed suit. It’s a surefire thing that Elena Kagan, the third liberal judge, Sotomayor and Breyer will agree. With these four on board, the parliamentary group would only need a conservative judiciary to get a majority.

Of course, I am not sure whether such a fifth voice can be found. What follows is only modestly informed speculation. But I think there’s a good chance it’s coming from Chief Justice John Roberts, Neil Gorsuch, or Amy Coney Barrett. I should add that it seems unlikely to me that Sotomayor, Breyer and Kavanaugh would have made this concurring opinion, which would have signaled their interest in looking into the matter, if they did not believe they had good odds in a future case to have a majority.

Co-blogger Josh Blackman confronts Kavanaugh for failing to provide an original reason for voting for Sotomayor’s approval. Naturally, an opinion that agrees with Certiorari’s refusal will often be on the verge of fully defending its position.

In fact, there is a compelling original rationale for rigorously scrutinizing gender-discriminatory laws, developed by prominent conservative, originalist constitutional lawyer Steven Calabresi and co-author Julia Rickert. I have already written about these topics here and here myself.

Be that as it may, it is highly unlikely that the Court will want to reverse its extensive modern precedents that subject gender-discriminatory laws to scrutiny. And as long as those precedents persist in the books, developments in defense policy according to Rostker have put male-only drafts on thin ice. There is simply no valid reason to restrict drafting to men at a time when women are no longer forbidden from serving in the armed forces, including combat. At least there are none that can stand heightened judicial review that voided male-only admission to military training at the Virginia Military Institute in the United States against Virginia (1996).

As mentioned earlier, I prefer to do away with draft registration entirely. That would simultaneously end gender discrimination and free young Americans of both sexes from the threat of forced labor. If the Supreme Court eventually rejects registration for men only, it may well be the result, as the court cannot order the extension of registration to women. Alternatively, Congress could adopt the Commission’s recommendation and create a gender-neutral registration system. In any case, the men-only registration days are likely to be numbered.