The Volokh Conspiracy

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Let's talk about Justice Kavanaugh's vote in National Coalition for Men v. Selective Service System

Why? Why? Why?


In March, I wrote about National Coalition for Men v. Selective Service System. This petition challenged the federal policy that excludes women from the draft. At the time, I considered whether the Biden Administration would defend the constitutionality of the policy. Ultimately, after several extensions, the SG filed a brief that punted on the constitutional question. Rather, the SG asked the Court to deny the petition so that Congress can change the policy. Sensible enough.

Today, the Court denied cert. And there was a statement respecting the denial of certiorari. It was written by Justice Sotomayor, and joined by Justices Breyer and Kagan. Scratch that. Justice Kagan did not join. It was Justice Kavanaugh. On quick read, I simply assumed it was Justice Kagan. The team at SCOTUSBlog made the same error.  But no, it was Justice Kavanaugh.

Let's walk through the statement. Justice Sotomayor begins with a rousing statement about the original meaning of the Due Process Clause of the Fifth Amendment. Scratch that. Justice Sotomayor writes about the Fifth Amendment's Equal Protection Clause:

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, 518U. S. 515, 531 (1996)); see Califano v. Westcott, 443 U. S. 76 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Cf. Bolling v. Sharpe, 347U. S. 497 (1954).

Next, the statement expressed agnosticism about how Congress was addressing that issue. Scratch that. Justice Sotomayor quoted legislative history (!) describing the "hope" (!) of one member that a provision may be "incorporated" (!) in a future bill.

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." Tr. of Hearing on Final Recommendations and Report of the [NCMNPS] before the Senate Committee on Armed Services, 117th Cong., 1st Sess., 21 (Mar. 11, 2021).

I need to check Reading Law to see what Justice Scalia thought about citing aspirational statements of legislative history.

The statement concludes with a firm deference to Congress on matters of national affairs. Scratch that. The dissenters will give Congress a bit of time to resolve this issue, but if they don't reach the right result, the Court will.

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 longstandingdeference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue. I agree with the Court's decision to deny the petition for a writ of certiorari.

That's a really nice bicameralism-and-presentment you got there. It would be a shame if something happened to it.

This statement is entirely predictable from Justice Sotomayor. Ditto for Justice Breyer. So let's talk about Justice Kavanaugh's join.

First, I am no longer convinced that Justice Kavanaugh is an actual originalist. Sure, he can talk the talk, but time and again, he writes and joins opinions that have no grounding in the original meaning of the Constitution. In a granted case, he would follow non-originalist precedent. But when writing about the denial of certiorari, he is free to write about the Constitution's original meaning. Here, he endorsed one of the most atextual opinions in modern Supreme Court history, Bolling v. Sharpe. And this citation was not a one-off. Justice Kavanaugh also cited Bolling, along with Brown in his Bostock dissent. Now I think the outcome in Bolling can be justified on originalist grounds–Randy and I talk about that case in our book. But an unexplained citation to Bolling does not reflect the work of a careful originalist. And his brief footnote in Bostock doesn't cut it. (Democratic Senators wasted so much time asking judicial nominees if Brown was correctly decided; they should have asked about Bolling to watch the noms squirm).

Second, I fear that Justice Kavanuagh will forever try to prove that he is fair to women. In the past, his jurisprudence was not exactly pro-feminist. See Azar v. Garza. But the Blasey-Ford allegations, coupled with his contentious second confirmation hearing, may have changed that calculus. This join is a useful way for Justice Kavanaugh to virtue signal he favors gender equality.

Third, I think this opinion reflects another savvy move from Justice Kagan. Why didn't she join the statement? It was basically a tribute to Justice Ginsburg. I'm sure Justice Kagan agreed with it. But when four Justices join a statement respecting the denial of cert, that suggests there are four votes to grant in the future. Justice Kagan's decision to sit out gave Justice Kavanaugh a lane to join.

The past few weeks have been very sleepy. The Court has issued a string of unanimous decisions in relatively unimportant cases. A storm is brewing for the end of the term. Will it be Red June? Or more likely, Purple June?