The Supreme Court has decided not to hear a case arguing that a male-only military draft is unconstitutional. But three justices — Sonia Sotomayor, Stephen Breyer, and Brett Kavanaugh — signed a rather menacing statement to go along with the decision.
The gist is that Congress deserves a chance to make women register for the draft — but if it doesn’t, these justices will support hearing a similar case in the future (emphasis mine):
The Fifth Amendment to the United States Constitution prohibits the Federal Government from discriminating on the basis of sex absent an “‘exceedingly persuasive justification.’” . . . 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. . . .
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.” . . .
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.
More from Josh Blackman, with an emphasis on Kavanaugh’s surprising role, here.