The US Supreme Court agreed Monday to hear a second case involving the scope of the government’s ability to invoke state secret privilege and declined to hear a case challenging the male-only military draft on the basis of gender discrimination.
When the court last reviewed the male-only draft rule in the 1981 decision Rostker v. Goldberg, women were still prohibited from participating in combat and “would not be needed in the event of a draft.” Petitioners in the current case argued that the court’s reason for singling out males was now outdated because women have been allowed to participate in combat since 2013.
Justices Sonia Sotomayor, Stephen Breyer and Brett Kavanaugh included a statement addressing their decision to leave this issue up to Congress. They said 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.”
Lawmakers have made some movement on this issue. In 2016, the legislature created a commission to study changes to Selective Service registration. This commission released a report last year calling on Congress to implement gender-neutral draft registration requirements.
In line with recent court trends, the court on Monday also granted review of a case concerning the scope of the government’s privilege to classify information as a state secret. FBI v. Fazaga is a class action suit concerning Operation Flex, an undercover surveillance operation. Class members who were surveilled under Operation Flex sued the FBI, which invoked state secret privilege and had the case dismissed, claiming that further litigation would require the FBI to make classified state secrets public, thus threatening national security.
Earlier this year, the court granted review in US v. Zubaydah, a similar case in which the government invoked state secret privilege to avoid accountability for years-long torture of a Guantanamo Bay prisoner whom they have admitted is not an associate of al-Qaeda but has not been freed.
