In the sixth installment of his series highlighting some of the worst-reasoned Supreme Court decisions in American history and the second of a pair of posts dealing with military conscription in the United States, Bryan charts the course of gendered arguments against the draft and how the most recent precedent set by the Supreme Court is laughably absurd.
This past December, I delved into the early history of resistance to military conscription in American history. While those first efforts to overturn the draft understandably turned on a perception of selective service as a violation of the liberties the United States was founded upon. Since that question was definitively settled (at least for the time being) at the close of the First World War, however, personal freedom and involuntary servitude have not featured in arguments against conscription. Instead, those subject to the draft have pointed out one huge, dissonant flaw in its implementation: in a century where women have been elevated to the status of full citizenship and suffrage, and in which the 14th Amendment to the Constitution guarantees all citizens equal protection under the law, it remains the case that only male citizens are subject to summary recruitment into the armed forces, and thus the exemption from the due process and protected liberties of civilians, against their will.
The first attempt to challenge conscription on this basis of gender discrimination occurred during the heydey of draft resistance in the 20th century in the 1970s. The eventually-unpopular war in Vietnam, not to mention the disproportionate number of black men swept up in the draft to serve overseas simultaneous with the raging Civil RIghts movement at home, led not just to draft dodging but to more formal legal challenges. One of these, from a group known as the Philadelphia Resistance, involved the charge the draft was predicated on unconstitutional gender discrimination. While their case, Rowland v. Tarr (1971) did reach the Federal district court for eastern Pennsylvania in 1974, it was too late; conscription had finally been discontinued, and there was now no active legislation to bring suit against.
Six years later, however, circumstances had changed. President Jimmy Carter had requested Congress reactivate selective service due to the Soviet invasion of Afghanistan—even recommending that it be made to apply to both men and women. Congress duly obliged the first request, but not the second, and now that same group from Philadelphia was back in the courts. They had immediately filed a new case in 1974, Goldberg v. Tarr, after their previous one had been dismissed. This time, the Federal district court not only agreed to hear the case, but ruled in their favor: only days before registration was due to open in 1980, the draft as it was currently formulated was ruled to be unconstitutional. The director of the Selective Service System, Bernard Rotsker, naturally appealed the decision, and the case, now known as Rotsker v. Goldberg, would make it to the Supreme Court.
In one of the more infuriating, bad faith rulings I’ve read in the course of writing this series, the Court would deliver a 6-3 decision the following year overturning the lower court’s ruling and denying that the draft as then implemented was discriminatory. Writing for the majority, Justice William Rehnquist (a figure who should rank alongside Roger B. Taney as one of the most infamous American jurists in history, but that’s a topic for another time) declared that exempting women en masse from military conscription could not possibly be discriminatory because the armed forces, the ranks of which conscription is designed to fill, did not allow women in combat roles as a matter of policy. Sticking to the most minimal letter of the case, the Court did not then proceed to inquire whether those policies were discriminatory. What’s more, Rehnquist apparently believed that discrimination itself could only be considered such if it was expressed in explicitly traditional, chauvinistly gendered terms. He denied that the Congressional legislation had been predicated upon traditional gender norms simply by merit of it having been passed the year before, in 1980. If that ridiculously circular logic wasn’t enough, Rehnquist was actually wrong, if not outright lying: many of those who supported the bill had done so explicitly in service just the sort of traditional gender roles Rehnquist claimed were absent. Nor would it be possible to institute a universal draft where women were assigned to noncombat roles and men to combat roles; in a deference to Congress that shows how unseriously the majority considered the issue, the Court agreed that such a new, more complex system would cause enough military and administrative issues to render it infeasible. Of the nine justices, only Thurgood Marshall, champion of so many other civil rights cases a decade before, dissented on the grounds that civic duty was not confined to only one gender.
Luckily for Goldberg and the rest of the Philadelphia Resistance, the draft was never actually implemented during the 1980s, and indeed has not been since, either. Registration remains mandatory for all men between the ages of 18 and 25, however (I remember filling out the forms for myself during the final months of my senior year of high school), and so another challenge was only a matter of time. Then, between 2013 and 21015, the entire game changed: the Pentagon reversed its previous policies and allowed women to serve in combat. In 2016, Congress duly created a commission to review Selective Service, and in 2020 that commission recommended, among other things, that the draft be made universal or even done away with entirely. A year prior, however, a group known as the National Coalition for Men had beat them to the punch and sued in Texas. The draft was back in the courts yet again.
This new suit, known as National Coalition for Men v. Selective Service System, would largely follow the pattern of Rotsker v. Goldberg almost forty years before it: initial success, followed ultimately by infuriating, ill-reasoned defeat. Initially, the Federal district court for Texas agreed and declared Selective Service unconstitutional under the 14th Amendment. This time, however, it was the Federal Court of Appeals that handed out the first setback, reversing the decision on the grounds that a lower court did not have the power to overturn a precedent set by the Supreme Court—even though the context and conditions of that precedent no longer applied, thus rendering the decision in Rotsker v. Goldberg outdated, if not defunct. The case was appealed up to the Supreme Court…which declined to even review it! In yet another abdication of responsibility cloaked as deference, Justice Sonya Sotomayor (joined by Justices Stephen Breyer and Brett Kavanaugh) explained that while the National Coalition for Men did have an argument for discrimination under the Constitution, the fact that a Congressional Commission was currently reviewing Selective Service legislation in advance of its reconsideration meant that “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.” The active review of a law clearly has no bearing on its Constitutionality, and I can only call such a sentiment an abdication of responsibility on the part of the Court. And of course, despite the Commission’s recommendation to remove gendered requirements for conscription, Congress declined to do so.
So here we are, in the early days of 2026, with a national military draft that is still confined to only male citizens. The legal hamster wheel goes on; with the conditions of its original denial now gone, NCFM again sued the Selective Service System in 2024, and that case remains ongoing at the time of writing. Perhaps within the next decade, we can finally greet a decision that declares that the obligation of citizens to defend their country in time of need applies to all citizens, no matter their gender.