Although the US has not had a military draft in decades, by law men between the ages of 18 and 26 must register with the Selective Service System just in case the government reinstitutes a draft. Women have no such obligation. Late last month, a federal district judge in Texas ruled that this sex-based disparity violates the constitutional guarantee of equal protection. The ruling in National Coalition for Men (NCM) v. Selective Service System will have no immediate impact, however, because the judge entered only a declaratory judgment. He did not order the Selective Service to implement any changes.
Meanwhile, a provision of a December 2016 statute created a national commission to study whether to continue draft registration at all and, if so, whether to require women as well as men to register. That commission issued a preliminary report just weeks before the district court’s ruling in NCM. The report does not indicate what the commission will ultimately recommend, but a final report is due a year from now. If the final report recommends either abolition of draft registration for everyone or expansion of the registration obligation to include women, and if Congress adopts either recommendation before completion of appellate review in NCM, the judicial decision could end up moot. And regardless of what Congress does or does not do, a higher court might reverse the NCM ruling.
Thus, it is too soon to tell whether NCM will have important consequences. At the very least, however, it has already sparked debate about draft registration, sex discrimination, and more.
Those are important matters of general public concern, but the district court ruling in NCM also raises a question of special interest to judges and lawyers: Did the judge even have the authority to rule as he did?
In 1981, in Rostker v. Goldberg, the Supreme Court rejected an equal protection challenge to the sex-discriminatory character of the draft registration obligation. Although Federal District Judge Gray Miller’s opinion in NCM argues that circumstances have changed since 1981, he did not grapple with or even cite the Supreme Court’s 1989 ruling in Rodriguez de Quijas v. Shearson/American Express Inc. There the justices admonished lower federal court judges to follow even outdated Supreme Court precedents, “leaving to th[at] Court the prerogative of overruling its own decisions.”
Did Judge Miller cross the line from applying to overruling Supreme Court precedent?
What Changes Justify Disregarding a Precedent?
It might not have occurred to Judge Miller to consider the Rodriguez de Quijas admonition, because it involved a different sort of change. In Rodriguez de Quijas, the lower court faced an early Supreme Court precedent that compelled one result but also subsequent Supreme Court rulings and statements that undercut the early precedent. Nonetheless, the justices instructed: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls . . . .”
Judge Miller did not invoke any post-Rostker cases that undermined its holding. Rather, he pointed to a changed fact. He said that Rostker did not apply to NCM, because the Court in Rostker rested its ruling chiefly on the fact that, at the time, women were ineligible to serve in combat roles and the purpose of a draft would be to boost the numbers of combat personnel. However, in 2015, the Department of Defense made women eligible for all military positions, including combat roles. Thus, according to Judge Miller, “[t]he dispositive fact in Rostker—that women were ineligible for combat—can no longer justify the [Selective Service System’s] gender-based discrimination.”
Does the difference between undermining subsequent precedents and changed facts properly take NCM outside the domain of Rodriguez de Quijas? One might think so. Any first-year law student can tell you that discerning whether a precedent established in Case 1 controls the result in Case 2 often requires a comparison of the facts in two cases. Such questions can be tricky.
Consider a very recent illustration. In order to reverse a conviction based on ineffective assistance of counsel in violation of the Sixth Amendment, a court must usually find not only that the defense lawyer’s performance was incompetent but that the incompetent performance prejudiced the defendant. However, the 2000 Supreme Court case of Roe v. Flores-Ortega held that where the lawyer’s incompetence consists in failing to file a notice of appeal, prejudice will be presumed. Last week, the Supreme Court decided Garza v. Idaho, which posed the question whether the Flores-Ortega presumption of prejudice applies even when the defendant has waived the right to appeal as part of a plea agreement. A majority thought that factual distinction ultimately unimportant; three justices disagreed.
Accordingly, if Judge Miller had said that Rostker makes some fact relevant to the rule’s application and that fact was established in Rostker but not in NCM, then he would have been engaged in the time-honored judicial function of discerning the scope of a precedent by attending closely to factual differences. However, that is not at all what Judge Miller said. He did not say that some key fact that Rostker makes relevant was different in NCM; he said that a key fact that makes Rostker correct had changed. Although the Rodriguez de Quijas admonition was issued in a case of intervening undermining Court statements rather than a case of intervening changed facts, the admonition’s logic applies at least as strongly to the latter circumstance.
To see why, it helps to think about the sorts of circumstances that justify overruling a past precedent. The leading contemporary precedent on stare decisis (the fancy Latin term for precedent) is the 1992 decision in Planned Parenthood v. Casey. Speaking for a majority on this point, the lead opinion listed changed facts right after intervening changes in legal doctrine that undermine an old precedent. Either sort of change, in combination with other factors, the majority said, could justify overruling a precedent.
There is no good reason why the Rodriguez de Quijas admonition should apply to one sort of change but not the other. Although the Supreme Court did not explain its reason for reserving to itself the right to overrule its precedents, a plausible reason suggests itself. If lower courts had the power to declare Supreme Court precedents defunct, they would sometimes—perhaps frequently—err in doing so. The Rodriguez de Quijas admonition treats that sort of error as more serious than the delay in overruling occasioned by barring lower courts from anticipatorily overruling Supreme Court precedents.
Adherence to the admonition also promotes the uniformity of federal law. If lower courts could anticipatorily overrule, they would sometimes disagree over whether they should, leading to the awkward result that a Supreme Court precedent would be valid in some places and invalid in others.
Are those good reasons for the Rodriguez de Quijas admonition? Perhaps, but even if not, it should be clear that they apply with no less force to an anticipatory overruling based on changed facts as to an anticipatory overruling based on intervening judicial decisions. Thus, Judge Miller wrongly disregarded the Supreme Court’s admonition by treating Rostker as inapplicable rather than waiting for the justices themselves to deliver the coup de grâce.
The Last Laugh
Nonetheless, Judge Miller could have the last laugh, because violating the Rodriguez de Quijas admonition carries no penalty; indeed, it comes with a kind of reward. In Rodriguez de Quijas itself, the very same paragraph that admonishes the lower courts not to anticipatorily overrule Supreme Court precedents announces the Court’s judgment that the lower court had correctly anticipated the justices’ own decision. The Court affirmed the lower court judgment and overruled the older precedent.
Likewise here and more generally, a lower court judge who thinks an old Supreme Court precedent is ripe for overruling is supposed to adhere to and apply that old precedent, but by violating that obligation and anticipatorily overruling, the judge tees the case up for further review and possible overruling. Unless and until the Supreme Court takes the unlikely step of imposing some cost on lower court judges who violate the admonition against anticipatory overruling, the Rodriguez de Quijas principle will remain a paper tiger.