Supreme Courtroom Refuses to Think about Case Difficult Male-Solely Draft Registration—however Suggests it Would possibly Revisit the Subject within the Future

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Earlier today, the Supreme Court chose not to hear a case challenging the constitutionality of male-only draft registration. But a concurring opinion joined by three justice signaled that the Court might well revisit this issue in the future.

The case in question is a ruling by the Fifth Circuit in National Coalition for Men v. Selective Service System. There, the lower court judges upheld male-only draft, but emphasized they did so only out of deference to the Supreme Court’s 1981 decision in Rostker v. Goldberg, (which upheld male-only draft registration against a previous challenge). The Fifth Circuit judges also noted, that they continued to apply Rostker even though the “factual predicate” underlying that ruling (women’s ineligibility for combat positions in the military) no longer holds true.

Today, three Supreme Court justices—Sonia Sotomayor, Stephen Breyer, and Brett Kavanaugh—joined an opinion written by Sotomayor strongly suggesting they too believe Rostker has become an anachronism:

The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “‘exceedingly persuasive justification.’Sessions v. Morales-Santana, 582 U. S. ___, ___ (2017) (slip op., at 9) (quoting United States v. Virginia, 518 U. S. 515, 531 (1996))…In Rostker v. Goldberg, 453 U. S. 57 (1981), this Court upheld the Act’s gender-based registration requirement against an equal protection challenge, citing the fact that women were“excluded from combat” roles and hence “would not be needed in the event of a draft.” Id., at 77.

The role of women in the military has changed dramatically since then. Beginning in 1991, thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions…. Women have passed the military’s demanding tests to become U. S. Army Rangers, Navy SEALs, and Green Berets…..  As of 2015, there are no longer any positions in the United States Armed Forces closed to women….

Why then, did the three justices vote against taking this case? Because they hope Congress will fix the problem first:

Petitioners, however, are not the only ones asking whether a male-only registration requirement can be reconciled with the role women can, and already do, play in the modern military. In 2016, Congress created the National Commission on Military, National, and Public Service (NCMNPS) and tasked it with studying whether Selective Service registration should be conducted “regardless of sex.” National Defense Authorization Act for Fiscal Year 2017, §§551(a), 555(c)(2)(A), 130 Stat. 2130, 2135. On March 25, 2020, the Commission released its final report, in which it recommended “eliminat[ing] male-only registration.” Inspired to Serve: The Final Report of the[NCMNPS] 111… Just a few months ago, the Senate Armed Services Committee held a hearing on the report, where Chairman Jack Reed expressed his “hope” that a gender-neutral registration requirement will be “incorporated into the next national defense bill….”

It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act. But at least for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue.

I myself testified before the Commission the justices are referring to, back in 2018. I urged them to recommend abolishing draft registration entirely, and to oppose any other form of mandatory national service, whether civilian or military. The Commission, which was stacked with national service advocates, took a different tack in its final report, at least when it comes to military service. Instead of abolishing draft registration, they recommend making it gender-neutral.

Whether Congress will adopt that approach remains to be seen. It may well be there is majority support for such a reform in both the House and the Senate. But Congress has a lot of other issues on its plate, right now, and they may prefer to focus their energies elsewhere.

If Congress does not act in the near future, the Sotomayor concurrence suggests the Court may revisit the issue within the next few years, and that—if it does so—Rostker might well be overruled. Here, it’s notable that the conservative Justice Kavanaugh joined the opinion. It’s a safe bet that Elena Kagan, the third liberal justice, agrees with Sotomayor and Breyer. With these four on board, the group would only need one more conservative justice to get a majority.

I obviously don’t know for sure whether such a fifth vote can be found. What follows is just modestly well-informed speculation. But I think there’s a good chance it might come from Chief Justice John Roberts, Neil Gorsuch, or Amy Coney Barrett. I would add that it seems to me unlikely that Sotomayor, Breyer, and Kavanaugh would have issued this concurring opinion signaling interest in considering the issue, if they didn’t think they had a good chance of securing a majority in a future case.

Co-blogger Josh Blackman takes Kavanaugh to task for not offering any originalist rationale for his vote to join Sotomayor’s concurrence. By its very nature, an opinion concurring in denial of certiorari will often stop short of providing a comprehensive defense for its position.

But, in fact, there is a compelling originalist rationale for subjecting sex-discriminatory laws to a high level of scrutiny, developed by prominent conservative  originalist constitutional law scholar Steven Calabresi and his coauthor Julia Rickert. I have previously written about these issues myself here and here.

Be that as it may, it is highly unlikely that the Court will want to reverse its extensive modern precedents subjecting sex-discriminatory laws to heightened scrutiny. And, so long as those precedents remain on the books, post-Rostker developments in defense policy put male-only draft registration on thin ice. There’s simply no good reason for limiting draft registration to men in an age where women are no longer barred from any positions in the armed forces, including those involving service in combat. At the very least, there are none that can pass heightened judicial scrutiny of the sort that led to the invalidation of male-only admissions to military education at the Virginia Military Institute in United States v. Virginia (1996).

As noted earlier, my own preference is to abolish draft registration entirely. That would simultaneously end sex discrimination and free young Americans of both sexes from the threat of forced labor. If the Supreme Court eventually strikes down male-only draft registration, that may well be the outcome, as the Court cannot order the extension of registration to women. Alternatively, Congress might adopt the Commission’s recommendation, and create a gender-neutral registration system. Either way, the days of male-only draft registration are likely to be numbered.