Tuesday, June 15, 2021
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAVANAUGH join, respecting the denial of certiorari.
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 (quoting United States v. Virginia); see Califano v. Westcott; Califano v. Goldfarb; Weinberger v. Wiesenfeld; Frontiero v. Richardson. Cf. Bolling v. Sharpe. The Military Selective Service Act requires men, and only men, however, to register for the draft upon turning 18. See 85 Stat. 353, 50 U. S. C. §3802(a). 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.”
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. Petitioners ask the Court to overrule Rostker in light of these developments.
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.”
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. Among other things, the Commission
found that “[m]ale-only registration sends a message to women not only that they are not vital to the defense of the country but also that they are not expected to participate in defending it.” 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 SelectiveService 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 agree with the Court’s decision to deny the petition for a writ of certiorari.
Justice Brett Kavanaugh just handed down a subtle but potentially very significant signal that he will protect at least some of the feminist victories won by Ruth Bader Ginsburg two decades before she joined the Supreme Court. Kavanaugh’s move does not mean that he is likely to tack left on questions like abortion, but it does suggest there are some limits to this Court’s willingness to toss out earlier victories by liberals.***
On Monday, the Supreme Court announced that it will not hear National Coalition for Men v. Selective Service System, a lawsuit challenging a federal law that requires men — and not women — to register for the draft when they turn 18.
That might seem like bad news to anyone hoping the court would apply gender nondiscrimination precedents to a new area. But the good news comes in a brief opinion that Justice Sonia Sotomayor wrote.
In it, she suggests that she believes that gender discrimination in the selective service program is unconstitutional — the main reason she’s not interested in taking up the case, she seems to say, is that Congress is considering legislation that could expand selective service registration to women.
Kavanaugh joined the opinion in full. And that opinion begins with a quote summarizing many of the Court’s gender equality decisions — the Constitution “prohibits the Federal Government from discriminating on the basis of sex absent an ‘exceedingly persuasive justification,’” Justice Sotomayor wrote in her opinion — followed by a long list of citations to the Court’s gender equality decisions.
So, in joining this opinion, Kavanaugh signaled that he agrees with Sotomayor, and with the gender equality decisions that Sotomayor cites.
That does not mean that these decisions are completely safe — on a 6-3 Court, Kavanaugh could be outvoted by the other five Republican appointees — but it is a hopeful sign for feminism. Kavanaugh is the Court’s median vote in most contentious cases, so it is unlikely that the Court will overrule a major line of precedents without his approval.