Military Draft

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

Three justices - including conservavtive Brett Kavanaugh - strongly suggested they believe male-only draft registration is unconstitutional.

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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.

NEXT: Motion to Dismiss in Marc Rotenberg v. Politico LLC

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  1. “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.”

    The link does not work.

      1. Most males will not see hand to hand combat. If one does, the military leadership sucks. The enemy should have been destroyed, before sending our sons into a meat grinder.

        So, females should be drafted, or it is not fair.

        One obvious question about the woke, fey, Pentagon. If females are equal, why can’t they stop their being sexually molested. When the boorish lout grabs one, why not do one of those jujitsu moves from the woke and fey training?

        1. The first female to graduate from the Citadel is now a Republican member of Congress—so Congress should have no problem changing the law to include females.

      2. “…a legal text can do more than its drafters imagined and that its scope can be affected by subsequent legislation. ”

        Is this originalism now? Sounds a lot like Jack Balkin’s living originalism.

  2. It’s weird to read an interesting and thoughtful article and at the end confront something so bizarre as a description of the draft as “forced labor.” I read the 2018 article and it’s even stranger, comparing conscripted GIs to victims of concentration camps and gulags.
    The guest blog by Robert Leider on conventions in the criminal law is almost directly applicable.

    1. What’s bizarre about that? You’re drafted, you’re not allowed to lounge around the barracks, you’ll be forced to do things, even, shall we say, laborious things.

      1. You might even be forced into live fire exercises.
        I do not do such things of my own volition

    2. Why is it bizarre to describe conscription as forced labor?

      1. I for one find it bizarre to claim the right to have most of your rights stripped away by the exceptional process of the draft, for war.

        In any case, if, for any issue, changing values should be dealt with via democracy rather than the courts, it is in the draft and waging war. If equality conflicts with battle efficiency, it should not win. Other discriminations were handled that way. How high and mighty a judge must be to direct the formation and actions of armies in areas they are neither charged with, constitutionally, nor filled with expertise for same.

        And now, the pointless disclaimer. I have no problems with a draft for women.

        1. “I for one find it bizarre to claim the right to have most of your rights stripped away by the exceptional process of the draft, for war.”

          That’s a weird way to put it: Does anyone claim being drafted is a right? The case is, “National Coalition for Men v. Selective Service System”, not “National Coalition for Women.”

    3. It is a kind of forced labor. But its a kind of forced labor free societies do and free members of them are subject to. That’s why freedom from a draft has never been interpreted as a right under either the 5th or 13th Amendments.

      1. Nor has a draft ever really been accepted. The first one, for the Civil War, led to rioting, and the power to raise armies does not imply conscription authority over the states’ citizens.

        That said, to say that women have Constitutional rights that men do not enjoy is simply asinine.

        Particularly now that gender is fluid….

        1. “Nor has a draft ever really been accepted.”

          The draft was in force from WWII until the 1970s, and was widely “accepted.” Even in peace time (unless you count the Cold War as war time.)

          1. I do.
            The 50 years war — 1941-1991.
            Although draft avoidance was also widely accepted.

            1. “The 50 years war — 1941-1991.”
              That kind of exaggeration (oh yeah we known about the Cold War) is what makes your comments lack any credibikity

      2. Free societies don ‘t do this.

        1. America in WW2 wasn’t free?

    4. Is it not forced labor?

      You were forced into the military. How is it anything other?

  3. I continue to take the view the military is a compelling interest.

    Courts cannot draft people. They cannot compel people to fight and die against their will. The judiciary lacks the power. Only the people’s elected representatives have the power to raise an army.

    At the same time, courts cannot strike fown a law for the raisinf of an army because there is a compelling interest in raising an army.

    So courts neither have the power to order women drafted, nor do they have the power ro strike down the entire draft law because it doesn’t include women.

    They simply don’t have the constitutional power to remedy a claim of this nature. In general, the discretion the political branches have in military and foreign affairs, together with the extreme impact on liberty inherent in a draft and the fumdamental limitations on the judicial power that largely keep judges out of military matters, prevents a court from providing a remedy in either direction.

    Under the “important and legitimate” standard, the law would pass muster in any event.

    1. There might be a compelling interest in raising an army, but not a compelling interest in using the draft. Our modern army is entirely volunteer – no one has been drafted since the Vietnam conflict ended. That would seem to satisfy ‘raising an army’ without a draft – at which point, a draft isn’t part of a compelling interest in ‘raising an army’.

    2. “So courts neither have the power to order women drafted, nor do they have the power ro strike down the entire draft law because it doesn’t include women.”

      Most judges don’t think that way, every issue benefits from their wisdom. Our whole history since Marbury is one judicial power grab after another.

      1. Lots of abstention and immunity and nonjusticiability doctrines out there putting the lie to your bile.

        1. Refusing to do your job when you don’t feel like doing it is a power, too.

          1. And thus everything is a power.

            Nice unfalsifiable narrative you just created.

    3. “They simply don’t have the constitutional power”
      Where do you get that?
      Of course the have the power, BUT they should not exercise that power

      1. “Of course the have the power”

        Why “of course”? Easy to come up with an argument that they have no power, he made it:

        “In general, the discretion the political branches have in military and foreign affairs, together with the extreme impact on liberty inherent in a draft and the fumdamental limitations on the judicial power that largely keep judges out of military matters, prevents a court from providing a remedy in either direction.”

        1. Bob,
          He did not make an argument. He made a statement.
          No institution, not the congress nor the executive, has ever stopped the Courts from exercising power in the form in question.

      2. “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”
        -Andrew Jackson

        1. Don’t you think that about every Court ruling you disagree with?

          The price of the republic seems a price you’re willing to pay on the Internet a whole bunch.

          1. Sigh. Never a post in which you fail to deliberately misinterpret the point.

            Point was, the court doesn’t have a lot of real “power” if it decides to do something the other branches disagree with..

            Here’s another nice example…

            United States ex rel. Murphy v. Porter

            1. The power of the Court is the power granted by the Sovereign. The People of the United States expect the decisions of the Court to be obeyed.
              If that expectation vanishes, the Court has no power. However, our litigious society affirms every day the expectation of the People that the decisions will be obeyed by individual, by the Executive and by the Congress

    4. Under the “important and legitimate” standard, the law would pass muster in any event.

      We have a shortage of babies in this country — as does most of Europe. Under the same standard, the forcible impregnation of healthy young women could be justified — although some of us would still call it “rape” and “being forced to bear her rapist’s child.”

      Society has a more compelling interest in young women being pregnant than young men getting killed in the Army….

      1. It would be far more efficient to simply prohibit abortion, raise the children in government creches and then send them to the Janissaries academy.

      2. Ed,
        not to worry. We have many young men coming to America from the South eager to be accepted by their new country.
        And even eager to pay your social security benefits with their taxes

    5. By that analysis, courts have no power to decide anything and Marbury was wrongly decided. Several hundred years of precedent disagrees with that conclusion, leading me to believe that your analysis is missing something important.

      I’m less sure exactly what is wrong with your analysis but I’m going to take aim at both of your starting premises.

      First, while the court may not have an independent authority to draft women (or anyone), they do have the authority to reject discrimination in the draft. They can review and overturn rules that exempt women which has the effect of “drafting” women.

      Second, while the court can’t stop Congress from raising an army, it most certainly can stop Congress from doing so in unconstitutional ways.

      Change the issue from gender to race – would you plausibly claim that the court could not overturn a law drafting only blacks? Or that exclusively drafted whites and exempted blacks? Or if that’s too polarizing, use political parties. Are you really claiming that Congress could pass a law that only required Democrats to register for the draft? or Republicans?

    6. So, slavery is ok with you as long as the state does it and you benefit from it?

      1. Without conscription, your government either has to be really picky with the adventurism – or it’s gotta fork over a shitload of money to get people to join.

      2. If you can’t get people to voluntarily defend your state – then it’s not worth preserving.

  4. I’ll believe that the original understanding of the EP clause back in 1868 was intended to prevent sex discrimination when you can show me how women had the right to vote in 1868 by virtue of the EP clause of the 14th Amendment.

    1. But, but, it’s a living Constitution, don’t you know?

      Or, as I like to call it, the Silly Putty Constitution.

    2. There is an is-ought problem here. You demand evidence about *what is* (“women had the right to vote in 1868”), but it doesn’t actually show *what ought to be* based on the EP clause. Nor would it, since *what is* doesn’t suggest *what ought to be*.

      Showing that women couldn’t vote in 1868 wouldn’t show your literal request (intent), since intent in an amendment and what actually happens on the state level wouldn’t be instant but would require further legislative and judicial processes, such as a Supreme Court case [Minor v. Happersett (1874)]. (If you want intent, go to the debate records.) Nor would your requested evidence show *what ought to be* in a larger sense, since the EP clause was recognized textually and conceptually to apply to voting by some contemporaries. (For instance, Victoria Woodhull argued that women had the right to vote before the House Judiciary in 1871, but her argument was rejected.)

    3. Why does it matter what was intended? Shouldn’t we interpret based on the actual text of the amendment? If verbiage was chosen that intentionally leaves room for interpretation, why shouldn’t we honor THAT original intent?

    4. I’ll believe that the original understanding of the EP clause back in 1868 was intended to prevent sex discrimination when you can show me how women had the right to vote in 1868 by virtue of the EP clause of the 14th Amendment.

      That’s a weird argument, since the EP clause of the 14th Amendment wasn’t understood as protecting anyone’s right to vote. (That’s why we needed a 15th amendment.)

  5. As a former holder of a draft card (until I joined the US Air Force) I think that men and women should have 100% equal opportunities to be drafted.

    Since the USSC has decided against equality then I want one of two things: Women to STFU about equality, because the USSC has declared them to be a protected (by Men) class, or for Congress to change the law driving equality – either register women, or stop registering men.

    1. OR involuntary impregnation…

      ANY justification of involuntary military service also justifies this — and any argument against it (including that raped mothers aren’t going to pursue the best of prenatal care) also applies to draftees.

      I have long said that we will never have an actual draft as long as any officer who served in Vietnam is still alive — they saw the costs of having people in the unit who didn’t want to be there, and how that caused even bigger problems….

      1. “any officer who served in Vietnam is still alive ”

        The youngest Draft Era officer would be 72+.

        While many are certainly “alive”, they have been retired for 15 years at least and don’t influence current policy.

      2. “OR involuntary impregnation…”
        Ed,
        take your meds

  6. You’d have to be pretty dense to think male only draft is unconstitutional on originalist grounds and the Framers and the Amendment writers wanted a gender balanced army.

    Having said that, the question is basically becoming meaningless now as the future of actual combat is moving to robots and a small groups of elite operatives with all the support infrastructure safe and not requiring any particular physical ability or aptitude. So the traditional military is free to become a social justice freakshow.

    1. We were supposed to have a standing Navy, but NOT a standing Army. That is what is being missed…..

      1. Indeed. And conscription does not appear in the Constitution.

        1. Technically speaking, it does.

          Article I , Section 8, Clause 15
          To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

          Lest you think that doesn’t include normal people, check what the “unorganized Militia” is defined as.

          10 U.S. Code § 246 – Militia: composition and classes

          The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States

          (2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

          1. Well aware of what the militia is – “Who are the militia? They consist now of the whole people, except a few public officers. ” according to Mason.

            And look at those qualifications mentioned – defend against invasion, enforce the laws, suppress rebellion. Nothing about overseas adventurism, nation building, etc.

            And since the militia is the whole people, women are certainly included.

            During WWII (at least post Pearl Harbor) the draft was a method of sorting and scheduling men into the military. Otherwise the Army would have to deal with a huge influx ever June as high schools graduated and men became available. It also provided a means of identifying those in critical jobs, or physically or cognitively unable to participate.

      2. Ed,
        Nothing is being missed, nor was it missed since the Founding.

    2. You’d have to be pretty dense to decide anything is constitutional or unconstitutional on originalist grounds. Unless the text in question is entirely unambiguous.

  7. Aside from the constitutional arguments

    Does anyone think it is a good idea to have a large segment of the military lacking the necessary skills, physical strength, etc to be the main fighting force?

    1. I agree. Submitting both genders to the draft (if a draft is ever necessary) would ensure that the military doesn’t lack the necessary skills and expertise to be the main fighting force.

    2. Tom,
      You need a few women to whoop your ass, then you’ll sing a different tune.

  8. “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.”

    The link says page not found.

    1. Cal, above Brett provided a link to the SSRN where you can download the paper.

  9. Let’s take a step back from the Constitutional stuff. Fascinating, yes, but.

    We haven’t had a draft in 50 years. Fifty! Years!

    When I hear the words “wasteful government spending” … draft registration is one of the first things that pops to mind.

    Howzabout we ask why we’re even spending this money in the first place? And if it hasn’t been used for Fifty! Frackin’! Years! maybe consider canceling it for both genders.

    1. and to the first person who inevitably says “but preparation!” … I bet Experian, TransUnion, etc., have better and more up-to-date records of who is between 18-26 and their current addresses than the Selective Service Admin gets from one frackin’ postcard. (yeah yeah, probably a web site these days, I’m old and registered with a postcard.)

      Why are we wasting money for political posturing that’s Fifty! Frackin’! Years! out of date? Government waste… why do you support government waste?

      1. I used to work for a credit reporting agency that has since been bought by TransUnion. You’d be surprised how bad their information is. It’s all passively collected, usually data dumps from credit card companies and companies that do public record searches for bankruptcies etc.

    2. Since I believe a draft to be immoral, I’m all for abolishing the predraft Selective Service system, but the amount of money they spend on it isn’t even a rounding error in the federal budget.

      1. All true, but that is not a reason to do away with it.

        In fact, should a need for a draft happen, there are many other ways to extract that data. SSAN data, health care databases, school data, drivers licenses, things like federally issued credentials (pilot, radio operator, trucker, medical professional, mariner, etc, etc, etc. And there would be nothing voluntary about it.

        Few to none of those systems existed in 1941.

  10. All true, but that is not a reason to do away with it.

    In fact, should a need for a draft happen, there are many other ways to extract that data. SSAN data, health care databases, school data, drivers licenses, things like federally issued credentials (pilot, radio operator, trucker, medical professional, mariner, etc, etc, etc. And there would be nothing voluntary about it.

    Few to none of those systems existed in 1941.

  11. 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.

    Even if women weren’t cleared for combat, I don’t see how it would make them ineligible to be drafted in to service.

    Yes, the draft is designed as a means to provide cannon fodder, but there are far more roles than trigger puller in the military. If we are truly in a military engagement that requires more soldiers, it necessarily means that more cooks are required. More quartermasters, truck drivers, armorers, etc are required. In fact, most roles within the military are not involved in direct combat as a matter of normal course, so why use combat eligibility as the bar for draft eligibility at all? Those men who were drafted to create more targets (as well as more door kickers) will need more people to support them. Even if women were ineligible for combat duty, there isn’t a justification on earth, short of the desire to rid us of the draft completely, to say that women shouldn’t be drafted for those roles.

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