Biden asks Supreme Court to not Hear Draft Registration Lawsuit

Although women have served in the US Military for decades, the draft remains restricted to only men. (Flickr)

In a brief submitted by Acting Solicitor General Elizabeth B. Prelogar to the Supreme Court this month, the Biden Administration asked the Supreme Court not to take up a lawsuit that argues the all-male military draft is unconstitutional. The lawsuit, titled National Coalition for Men v. Select Service System, hopes to overturn the restriction on women registering for the draft.

Stating that Congress is already considering changing the provisions, the brief argues that “affording Congress a more realistic period in which to address the issue would accord with the Court’s ‘usual practice’ of ‘avoid[ing] the unnecessary resolution of constitutional questions.’” However, the brief itself does not take an explicit stance on this issue. The Trump administration repeatedly defended the decision to continue the current system. 

While the military draft for the United States has not been in use since the Vietnam War, the Selective Service System has remained in place in the name of national security. Though it is unlikely that the United States will use the draft in the near future, the punishments for dodging registration are high; men who do not register are not eligible for federal student aid, federal jobs, or citizenship, and they can face hefty fines and imprisonment.

The Supreme Court established in Rostker v. Goldberg that because the United States already had combat restrictions on women, they were not “similarly situated” for combat and thus not fit for draft registration. However, the United States opened all combat jobs to women in 2015. In 2019, a federal district court ruled that because of the expansion of women’s rights in the military, the draft restriction was no longer justifiable. However, the court decided that only the Supreme Court can overturn its own precedent. 

This has led to organizations such as the ACLU and National Organization for Men restarting efforts to expand the draft. In their briefing to the Supreme Court, the ACLU argued, “The registration requirement is one of the last sex-based classifications in federal law. It imposes selective burdens on men, reinforces the notion that women are not full and equal citizens, and perpetuates stereotypes about men’s and women’s capabilities.”

Military leaders and a Congressional task force have both expressed support for expanding the draft and requiring women to register, arguing that required registration for all genders would make it “possible to draw on the talent of a unified nation in a time of national emergency.”

Though the briefing by President Joe Biden mentioned Congress considering the process to revise this policy, little has been done—no bills have been introduced in this Congressional session to amend this policy as of April 15. The Supreme Court will also likely take weeks—or even months—to decide whether to hear the case.