Supreme Court punts on including women in the draft, cites 'deference to Congress'

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The Supreme Court on Monday punted on a case that could have required women to be included in the Selective Service System – the military draft – citing Congress' ongoing consideration of the issue.  

The court denied a petition from the National Coalition for Men to hear the case on the system that currently requires all men from 18 to 25 to register for potential military service in a national crisis. The group said that the continued integration of women into the military and the reversal of the ban on women in combat removed the basis of the 1981 case that upheld the selection of only men for the draft. 

The Selective Service System, opposing a change that would mandate women register for the draft, emphasized that the court previously "deferred to Congress’s judgment" on the Selective Service System. 

Justices Sonia Sotomayor agreed with that argument in a statement also signed by Justices Stephen Breyer and Brett Kavanaugh. 

In this Aug. 17, 2019 file photo, U.S. Supreme Court Associate Justice Sonia Sotomayor, speaks at the Mississippi Book Festival in Jackson, Miss. Sotomayor, joined by Justices Brett Kavanaugh and Stephen Breyer, said Monday that the Supreme Court should defer to Congress while it considers whether women should be made to register for the draft. (AP Photo/Rogelio V. Solis)

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In the precedent that upheld the men-only draft, Sotomayor wrote, "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," Sotomayor continued. "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."

But Sotomayor continued to note that Congress created a commission to study whether women should be included in the draft, which released a report last year saying that they should. And in recent months, she said, senators including Armed Services Committee Chairman Jack Reed, D-R.I., said he wants the upcoming defense bill to include a provision requiring women to register for the Selective Service System. 

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It is not clear that effort will succeed, but nevertheless the Supreme Court should give Congress space to act before weighing in, Sotomayor said. 

FILE - In this Aug. 21, 2015, file photo, Army 1st Lt. Shaye Haver, center, and Capt. Kristen Griest, right, pose for photos with other female West Point alumni after an Army Ranger school graduation ceremony at Fort Benning, Ga. Haver and Griest became the first female graduates of the Army's rigorous Ranger School. (AP Photo/John Bazemore, File) (AP)

"[A]t 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," Sotomayor said.

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The Supreme Court is nearing the end of its term, with approximately 20 merits cases left to decide in what is expected to be a high-stakes flurry of major opinions. 

The court's new 6-3 Republican-appointed majority will be closely watched to see how it handles hot-button issues like health care, freedom of speech, religious freedom and more.