Fifth Circuit Overturns Selective Service Ruling, Setting Up Supreme Court Fight

On Aug. 13, a unanimous panel of the U.S. Court of Appeals for the Fifth Circuit held that the Selective Service’s male-only registration requirement did not violate the Constitution’s Equal Protection Clause. In doing so, the panel overturned the Southern District of Texas’s ruling to the contrary. The panel relied on a 1981 Supreme Court case on the same topic, albeit one adjudicated in a decidedly different era and facing decidedly different factual circumstances vis-à-vis female military service. The Fifth Circuit decision sets the stage for those challenging the draft process to ask the Supreme Court to overturn its precedent on the issue.

The Procedural History

The National Coalition for Men (NCFM) and James Lesmeister, an individual and male draft registrant, first filed suit in 2013 in the U.S. District Court for the Central District of California. As Sarah Grant summarized earlier on Lawfare, the district court trial judge dismissed the case, arguing that the facts of the case weren’t sufficiently ripe for judicial intervention. The U.S. Court of Appeals for the Ninth Circuit revived the case, reversing the district court and remanding it back to the lower court for consideration. The trial judge dismissed the claims on standing grounds and additionally opined that the Southern District of Texas, where Lesmeister resides, was the proper venue. As Grant wrote,

NCFM, Lesmeister, and a new plaintiff, Anthony Davis, filed an amended complaint in the Southern District of Texas in August 2017. Early on, Judge [Gray] Miller denied the defendants’ motion to dismiss, finding that all three parties had standing and a plausible claim for relief, and allowing the case to proceed. In August 2018, the plaintiffs moved for summary judgment, asking Judge Miller to find in their favor as a matter of law. Judge Miller did so in his ruling on Feb. 22, and denied a defense motion to stay proceedings pending the results of congressional study into whether women should be added to the draft, currently being undertaken by the congressionally established National Commission on Military, National, and Public Service.

The Fifth Circuit’s Ruling

Judges Jacques Wiener, Carl Stewart and Don Willett of the Fifth Circuit overturned Miller’s ruling in a brief six-page per curiam opinion from August. Their reasoning relied almost entirely on the precedent of Rostker v. Goldberg, the 1981 Supreme Court Case that adjudicated the Equal Protection violation—or lack thereof—associated with a single-sex draft registration requirement. As I’ve written previously on Lawfare, in that case:

The court analyzed the law under the framework of intermediate scrutiny established under Craig v. Boren, which states that a law’s disparate treatment by gender can be upheld only if the law furthers an important government interest and that the law, including its gender-disparate treatment, must be substantially related to that interest. Because at the time, “women [were] excluded from combat,” the court upheld Congress’s decision not to have them register.

Following a brief background on the Military Selective Service Act, the panel turned straight to Rostker, similarly concluding that in that case “[t]he [Supreme] court based its reasoning on the fact that women were then barred from serving in combat and deferred to Congress’s considered judgment about how to run the military.” To wrap up its background section, the opinion then noted the ways in which civilian leadership has amended military rules and policies to allow for women to serve in additional roles while in uniform. The panel also noted that a bill that would have made Selective Service registration obligatory on both sexes and that passed the Senate did not survive the House. Notably, the opinion is light on details regarding the many inroads by female service members. (Many of those factual developments were detailed in our prior post on the case, including female commands of Navy vessels and Air Force fighter squadrons, women’s service aboard aircraft carriers and submarines, and numerous combat roles.)

With that context in place, the judges then turned to the heart of the issue—the standard of review and stare decisis:

Here ... the factual underpinning of the controlling Supreme Court decision has changed, but that does not grant a court of appeals license to disregard or overrule that precedent. See also Roper v. Simmons, 543 U.S. 551, 594 (2005) (O’Connor, J., dissenting) (pointing out that only the Supreme Court may overrule its precedents “even where subsequent decisions or factual developments may appear to have ‘significantly undermined’ the rationale for [the] earlier holding” and therefore the majority should have admonished the circuit court despite affirming its judgment); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”); Agostini v. Felton, 521 U.S. 203, 237, 239 (1997)(confirming rule from Rodriguez de Quijas that lower courts may not “conclude [that] recent cases have, by implication, overruled an earlier precedent”).

Simply put, the court deemed itself obligated to adopt any and all apposite Supreme Court precedent notwithstanding factual developments or advances. In light of this approach, the Fifth Circuit felt it inappropriate to discard Rostker, even given the aforementioned changing military landscape, and overturned the district court’s ruling.

Next Steps, Previewing the Supreme Court

There are plausible arguments for why Rostker no longer applies, and, to be sure, there are persuasive arguments for why the NCFM’s Equal Protection claims ought to prevail on the merits. Nonetheless, the Fifth Circuit was likely correct to rely on Rostker and tee this up for the Supreme Court to adjudicate. Indeed, Harry Crouch, president of the NCFM, announced that the organization was “exploring its options, including filing a Petition for Writ of Certiorari with the United States Supreme Court.”

The prospect of a potential cert petition is particularly interesting because the court is in the midst of grappling with the weight of precedent and stare decisis. Although primarily on issues outside Lawfare’s foci—namely, criminal juries and abortion—the circumstances under which the court should vote to overturn precedent have become a polemic issue within the court as well as the public consciousness. For example, the issue cropped up in a recent case involving criminal juries. In an April ruling in Ramos v. Louisiana, the court overturned Apodaca v. Oregon, a 1972 case that permitted nonunanimous juries to convict on state criminal charges. Justice Brett Kavanaugh wrote a separate concurrence to synthesize what he viewed as the guidelines for when precedent ought to be overturned. In so doing, he observed that “in just the last few Terms, every current Member of th[e] Court has voted to overrule multiple constitutional precedents.” What’s more, as Kavanaugh observed, when the court reviews constitutional questions, its fidelity to stare decisis “is not as ‘inflexible,’” quoting Justice Louis Brandeis.

The court, as currently composed, has not yet decided an Equal Protection Clause case on constitutional grounds, so there is not much recent apposite precedent on which to prognosticate how the court would view a challenge to Rostker. But the chief fact on which Rostker relies—whether women were permitted to serve in combat—has been turned on its head by Secretary of Defense Ash Carter’s December 2015 Memorandum of Policy reversing the gender ban. What’s more, public opinion has shifted on the issue. Support for female selective service representation has risen in recent polls. In a 2016 Rasmussen poll, only 49 percent of likely U.S. voters felt draft registration should include both sexes, whereas a 2017 poll done by the National Commission on Military, National, and Public Service shows an uptick to 53 percent. So, too, have officials and relevant stakeholders come out in support of the idea: Rep. Alexandria Ocasio-Cortez supported the change last year; and the National Commission on Military, National, and Public Service endorsed women’s registration in the Selective Service, as detailed elsewhere on Lawfare. Given these developments, along with the court’s seeming willingness to overturn precedent in other realms, do not be surprised to see this case percolate to the Supreme Court shortly, where it may prove to be the death knell for yet another precedent.