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Supreme Court Hands off Draft Registration Issue to Congress
From Draft NOtices, July-September 2021
Supreme Court Hands off Draft Registration Issue to Congress
— Rick Jahnkow
On June 7, the Supreme Court announced that it would not consider an appeal in a case challenging the constitutionality of male-only draft registration. Very little was said by members of the Court, but Justice Sotomayor wrote the following statement, co-signed by Justices Breyer and Kavanaugh:
"It remains to be seen, of course, whether Congress will end gender-based registration under the Military Selective Service Act. But at least for now, 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 court’s inaction now leaves it up to Congress to decide whether to expand the registration requirement to include females, discontinue it entirely, or allow male-only registration to continue.
Congress is now focusing on the annual National Defense Authorization Act (NDAA), which recommends funding levels and sets policies for spending by the Department of Defense during the next fiscal year.
The general’s testimony did not clarify what critical race theory is. Indeed, it may have added to the confusion for the general claimed that he wanted to understand “white rage,” suggesting that the theory was developed for such a purpose. White rage has existed, as Carol Anderson has documented in White Rage: The Unspoken Truth of Our Racial Divide. But CRT was not developed for understanding a white backlash to social, economic and political advances by Blacks and other historically oppressed communities. A brief review of its origins and tenets may serve to bring much needed insight to this debate and enable understanding of the general’s stance. It is possible to construct more than one history of the CRT and to identify various definitions of the concept. Nevertheless, there is common agreement that it emerged in the 1970s as a theoretical approach within the field of critical legal studies. Originated by mostly African American scholars, CRT practitioners sought to develop a jurisprudence that accounts for the persistence of racism in American law. By focusing on racism, the scholars challenged the “end of racism thesis,” the notion that racism had ended and that race no longer mattered in American society. This thesis had gained traction in legal and educational circles in the 1970s and ‘80s.
That ruling, won by COMD in its civil rights lawsuit against the Grossmont Union High School District, set the stage for a negotiated settlement with the school district that was made official on April 6, 1987. The comprehensive settlement enforces COMD's right to run ads in all nine of the Grossmont High School District student newspapers. It further requires the district to post copies of the appellate court's decision in its high school journalism classrooms and distribute copies of the decision to district faculty journalism advisors. COMD was also awarded a total of $13,000. The bulk of this sum, $12,000, is going to cover legal costs. $1,000 will go directly to COMD as reimbursement for out-of-pocket expenses tied to the lawsuit, i.e., filing fees, xeroxing, postage, and phone calls. Damages were not requested because it was never intended that any money be received as a result of this lawsuit other than for COMD expenses. This position was adopted by COMD so as not to take money away from vitally needed educational services.
