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State secrets and the constitutionality of the male-only draft

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The world was in balance this week, as the Supreme Court cleared out two relisted cases even as it took on two new relists. Good news for the petitioner in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 20-915, as the court agreed to decide whether knowing falsity alone is enough to justify invalidating a copyright, or whether a party challenging a copyright must also show fraud or material error.

The news was a little more mixed for petitioner Kenneth Lamont Sanders in Sanders v. United States, 20-6400. On the plus side, the court granted his petition, vacated the judgment rejecting his challenge to the warrantless police entry of his household, and sent his case back to the court of appeals for further consideration in light of the court’s recent decision in Caniglia v. Strom. Caniglia held that a non-investigative interest in “community caretaking” did not permit the kind of warrantless entry into a house that landed Sanders in hot water when police entered his house in response to reports of a domestic dispute. But on the negative side, the court’s influential median vote, Justice Brett Kavanaugh wrote separately to reiterate a point he made in his Caniglia concurrence: Putting aside the “now-erroneous label” of “community caretaking,” the Supreme Court has long “allow[ed] warrantless entries into a home in certain circumstances,” such as when police have an objectively reasonable basis for believing an occupant is in danger.

We previewed this week’s juiciest new relist, National Coalition for Men v. Selective Service System, 20-928, a couple weeks ago. The case was scheduled to be considered at the May 20 conference, but a few days beforehand, the court rescheduled the case for May 27, delaying the first time the justices would have the opportunity to discuss the case. That “rescheduling” process indicates that at least one of the justices is paying close attention to the case. National Coalition for Men presents the question whether the government may lawfully limit draft registration to men. Rostker v. Goldberg upheld male-only draft registration because women at that time were categorically prohibited from serving in the armed forces in combat roles. The Department of Defense has since lifted that ban, and so the National Coalition for Men, a men’s rights organization backed by the American Civil Liberties Union, argues that Rostker should be overruled and that the requirement that men but not women should be required to register for the Selective Service violates the Fifth Amendment right to equal protection. Lead counsel for the challengers are principally women.

The government argues that it would be “premature” to reconsider Rostker now because Congress is actively considering modifying male-only registration. It also argues that this case is a bad vehicle because the challengers lack standing.

That brings us to our second new relist. In Federal Bureau of Investigation v. Fazaga, 20-828, respondent Yassir Fazaga and two other Muslim men from Southern California brought constitutional claims alleging that the FBI used a confidential informant to covertly gather information about Muslims in their communities based solely on their religion. The district court dismissed the claims on the basis of the state-secrets privilege, a common-law privilege under which the government can refuse to produce relevant evidence in a case if its disclosure would damage national security. The assertion of the privilege requires dismissal when litigating the case to judgment, even without introducing the privileged evidence, would present an unacceptable risk of disclosing state secrets.

The U.S. Court of Appeals for the 9th Circuit reversed and remanded for further proceedings, concluding that a provision of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence. The provision in question, Section 1806(f) of FISA, establishes procedures for people to seek to suppress FISA evidence that will be introduced against them. When the 9th Circuit failed to rehear the case en banc, Judge Patrick Bumatay, joined by eight other judges, dissented, arguing that the decision was incorrect and endangers national security. The government’s petition also argues that the decision is harmful to national security.

We’ll have a better idea whether the court agrees on Monday. If the court grants review, it will be the second state secrets merits case of the term, both of them from the 9th Circuit.

That’s all for this week. Stay safe!

New Relists

Federal Bureau of Investigation v. Fazaga, 20-828
Issue: Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.
(relisted after the May 27 conference)

National Coalition for Men v. Selective Service System, 20-928
Issue: Whether, in light of the Department of Defense having lifted the ban on women in combat, the Supreme Court should overrule Rostker v. Goldberg, which upheld the men-only draft because women at that time were categorically prohibited from serving in combat roles, and hold that the federal requirement that men but not women register for the Selective Service, authorized under 50 U.S.C. § 3802(a), violates the right to equal protection guaranteed by the Fifth Amendment.
(relisted after the May 27 conference)

Returning Relists

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Lombardo v. City of St. Louis, Missouri, 20-391
Issue: Whether a reasonable jury could find that officers used excessive force when they put a handcuffed and shackled person face-down on the ground and pressed into his back until he suffocated.
(rescheduled before the Dec. 4, Dec. 11, Jan. 8, Jan 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1, April 16 and April 23 conferences; relisted after the April 30, May 13, May 20 and May 27 conferences)

Dunn v. Reeves, 20-1084
Issue: Whether the U.S. Court of Appeals for the 11th Circuit violated 28 U.S.C. § 2254(d) by readily attributing error to the state court in violation of Woodford v. Visciotti.
(relisted after the May 20 and May 27 conferences)

Hernandez v. Peery, 20-6199
Issues: (1) Whether a Certificate of Appealability (“COA”) should routinely be granted where the state courts and state judges have divided on the merits of the constitutional question as held by the 5th and 7th Circuits, several District Courts and three justices of this Court, or should courts deny a COA despite the dispute among reasonable state jurists as held by the 9th Circuit and District Court below; (2) whether, as a threshold matter, Petitioner made a showing that reasonable jurists could debate whether his petition should have been resolved in a different manner where the California Supreme Court’s published opinion created a split with every state and lower federal court since Perry v. Leeke, which have held that a trial court order that violates the “defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters” is structural error, reversible per se; and (3) whether the 9th Circuit improperly looked beyond the threshold inquiry of whether a COA is merited and decided the merits without jurisdiction in contravention of this Court’s holding in Buck v. Davis, where different state court judges reached opposite conclusions on Petitioner’s constitutional claim and where all lower federal and state court authority disagrees with the California Supreme Court’s holding on this constitutional claim.
(relisted after the May 20 and May 27 conferences)

Recommended Citation: John Elwood, State secrets and the constitutionality of the male-only draft, SCOTUSblog (Jun. 3, 2021, 10:43 AM), https://www.scotusblog.com/2021/06/state-secrets-and-the-constitutionality-of-the-male-only-draft/