Selective Service Dodges Supreme Court Review Of Military Draft

Know what draft dodgers look like? They may vary by age, weight, height, complexion, eye color, etc., but draft dodgers all have one thing in common–they are MEN. What’s up with that? Well, men are the only ones currently required to register for the draft. Some men are up in arms (pun intended) at this disparity in treatment. Does drafting only men pass constitutional muster? We won’t find out what the U.S. Supreme Court thinks because the highest court in our land has denied a petition to have a case addressing that issue heard.

The case making headlines, but not the Supreme Court’s hearing docket, is National Coalition for Men v. Selective Service System. This men’s group brought suit claiming having men only eligible for the draft was an unconstitutional discrimination based on sex. For you legal scholars, their argument was based on the Fifth Amendment’s Equal Protection Clause.

Since a constitutional issue was the lawsuit’s basis, the Coalition’s case was brought in federal court. In 2019, a federal district judge found the men’s position to be persuasive; it held the draft setup to be unconstitutional. But wait! There’s more! To no one’s surprise, the Selective Service System appealed the invalidation of its program. In round two, the appellate court sided with the Selective Service System. So, not willing to give up the battle, the Coalition filed for a writ of certiorari (fancy legal term involving Latin word) asking the court to hear their appeal.

The Supreme Court can’t hear all the cases it’s asked to consider. I mean when would the justices have time to write their books, make speeches, and get their robes dry cleaned? If the justices feel a particular case addresses an important legal issue and should be heard, they grant a writ allowing the appeal to be added to its argument docket. No such luck for the Coalition, represented by the ACLU, though. The Supreme Court gave a thumbs down to the request; a brief statement issued by Justice Sonia Sotomayor explained why consideration of the case was not appropriate at this time.

To understand the case and the denial of the writ, it’s first necessary to understand the system in the litigation crosshairs. The Selective Service System (“SSS”) is an independent agency within the government’s executive branch. In case you were not a political science major like I was, that branch is run by the President. SSS is NOT a part of the Department of Defense.

SSS has two basic roles. First, it oversees draft registration. In registration, people (to be more precise MEN) identify themselves as potentially draft eligible. Second, if the need for a draft arises (think WAR), a law must be passed to authorize SSS to conduct a draft. SSS then oversees the conscription process. No draft has occurred in the U.S. since 1973 when the authorization expired to conduct a draft to conscript men for Vietnam War service. U.S. military forces have been all volunteer since then.

Selective Service was established to facilitate assembling military forces for combat. The Selective Service Act, which authorized the agency, was passed just six weeks after the U.S. entered World War I in 1917. A 1948 law compelled only men to register for potential military service. Women were not eligible for combat roles at the inception of the Selective Service System. Thus, they were not included in the net of people required to register for the draft. In fact, women could not even volunteer to do so.

But times, they are a changin’. When the draft ended in 1973, women comprised merely 2% of U.S. enlisted forces and 8% of the officer corps. These figures have now risen to 16% and 19%. Moreover, women have legally served in all combat roles for several years. Still male-only registration remains on the books. And failure of a man to register has steep consequences; it is a felony punishable by five years in prison, a fine up to $250,000 (that’s a quarter of a million dollars for those who are mathematically challenged), and ineligibility for federal jobs and student loans.

National Coalition for Men is, however, not the first case to challenge the requirement only men have to register for potential military service. In 1981, the U.S. Supreme Court in Rostker v. Goldberg upheld the setup by a 6-3 vote. A key fact cited in Justice Rehnquist’s majority opinion was that women as a group were not eligible for combat. In its simplest terms (since Supreme Court opinions are rarely short and easily understandable), the rationale was that women needn’t be drafted for military service when combat was anticipated since they couldn’t fill a combat role anyway.

The Rostker decision served as the basis for the federal appellate court reversing the district court’s decision in National Coalition for Men. The appellate court felt bound by the Supreme Court’s prior decision in Rostker. The fancy legal word for this legal concept is “precedent.”

So, if the composition of the military has changed to allow women in combat roles, why would the Supreme Court decline to hear a seemingly strong constitutional challenge to a male only registration process? The brief filed on behalf of the Biden Administration (remember SSS is part of the executive branch) and Justice Sotomayor’s Statement about the Court declining to hear the case provide the answer. Drum roll, please. The Court didn’t need to take action because the issue may be going away without court intervention.

How is this situation going to change? Legislative, rather than judicial, action is likely to be taken. The National Commission on Military, National, and Public Service conducted a four-year study of the male-only draft registration requirement. Its conclusion announced in March 2020? Eliminate the male-only draft. A 2020 bill was introduced to include women in the draft. Although the requirement as to who must register has not yet been resolved, the matter is being addressed by the legislative branch. And, as Justice Sotomayor noted, Congress has long given deference to Congress on matters of defense and military affairs. In others words, let the legislative branch deal with that can of worms.

I don’t own a crystal ball, but I imagine one of two things will happen with the draft system. Either women will be included in the draft registration requirement or the entire system will be chucked. This high profile issue really involves two questions–what should the role of women be in defending the country and how do we go about having a ready pool of individuals ready to serve should the need (again, think war) arises. Question one is a no-brainer and already answered. Women are ready, willing, and able to serve their country, even in combat roles, without being required to do so. With the advent of computers and online databases which can identify eligible individuals, simply having a list of people (be they men only or men and women) who have registered, and which list is not updated once entered, is not really helpful. A more modern and effective process is needed.

As an attorney, I applaud the Supreme Court for declining to take on a highly visible and interesting case. If the matter can be resolved short of involving the high court, why expend judicial time and effort to do so? That perspective seems to be common sense to me, but there’s a dearth of common sense in government, not to mention society in general, today. As for me, I’ve dodged the draft issue anyway; at my age, I am well past the age for registration (18 through 25).

Just WONDER-ing:

Do you know a man who was drafted? If so, how did he feel about the process? Were you aware the penalties were so severe for failing to register? If women are already serving in combat roles, why shouldn’t women as a group be required to register for the draft like men?


2 thoughts on “Selective Service Dodges Supreme Court Review Of Military Draft

  1. My husband was drafted. At the time we were not pleased but looking back it was a growing experience. I thing men & women should register. Additionally, I think all men & women should be required to serve our country for 2 years war or not.


    1. Thanks for reading and for responding, Jackie. That is a nugget that something you were not happy about, i.e., your husband’s being drafted, allowed growth in your lives. Service to our country is important and being good citizens is an obligation for ALL of us regardless of gender!


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