Draft Registration for Women? The Supreme Court Stands Down

To everything there is a season, and in a season when the Supreme Court will decide many important questions, the justices have recognized an important truth: For major constitutional issues, there is a time to act, and there is a time to do nothing.

They followed this wisdom in declining to hear a lawsuit challenging the constitutionality of requiring only men to register for the military draft. You may ask: What draft? The justices may have asked themselves the same question.

Aware that military conscription hasn’t happened since 1973 — a year after Amy Coney Barrett, the newest justice, was born — they understand that there is no urgency about resolving a question that is important in principle but moot in practice.

Despite the absence of a draft, all males from age 18 to 25, including noncitizens, have to register with the Selective Service System — just in case the government should one day want to invite them to boot camp.

Anyone who doesn’t comply is ineligible for federal student aid, federally funded job training and, in the case of foreigners, U.S. citizenship. In some states, failure to register means you can’t attend a public university or get a driver’s license.

Failing to register is a felony, but not really: No one has been prosecuted since 1986.

In 1981, the court said excluding women was fine because they couldn’t serve in combat. But since then, women have been admitted to every role the military has. As Defense Secretary Ashton Carter announced in 2015, “They’ll be allowed to drive tanks, fire mortars and lead infantry soldiers into combat.” There are female fighter pilots, ship commanders and paratroopers.

The basis for the 1981 decision has disappeared. Those challenging the law, a group called the National Coalition for Men, clearly have the better of the argument. In recent decades, the court has repeatedly ruled that the constitutional mandate of equal protection requires women and men to be treated the same.

Discrimination against women is not allowed. The justices ordered the Virginia Military Institute, a public college that had been all-male since its founding in 1839, to admit women. Nor is discrimination in favor of women allowed: The court also said that Mississippi University for Women, the first public women’s college in America, had to admit men to its nursing school.

It's safe to assume that even a court loaded with conservatives would find it hard to justify a system that obligates one sex while sparing the other. In time, the government will have to choose between making everyone register and making no one register.

But that doesn't mean the court should butt in now. The burden on men is modest, and it would not be lighter if women were also forced to shoulder it. The chance of actual conscription, in our modern era of high-tech warfare, is too remote to warrant immediate reform.

Besides, as Justice Sonia Sotomayor noted in a statement explaining the decision not to hear the case (joined by Stephen Breyer and Brett Kavanaugh), Congress may very well address the issue itself.

A congressionally created commission issued a report last year that said, "The time is right to extend Selective Service System registration to include men and women." The Biden administration asked the court to stand down, giving Congress time to decide whether to enact that change.

Consider this unlikely spectacle: A Democratic administration asked the court not to issue a decision that would align with its own preferences, and liberal justices declined to consider a case in which they would probably prevail. This deference to the other branches of government reflects an approach commonly championed by conservatives.

Supporters of gender equality might wish to achieve this victory immediately. But there are good reasons to commend the court and the administration for their caution. Decisions by elected representatives generally win greater public acceptance than decrees by judges.

Judicial abstinence isn't likely to preserve the male-only registration system in the end. No one seriously denies that men and women deserve the same opportunities and duties, except in rare circumstances. If Congress refuses to uphold that principle, the court will have plenty of chances to do so.

There are times when the court has to settle an issue. But wise justices also know when to say: "You know what? We're not needed here."