29. The Selective Draft Law Cases

To commemorate Memorial Day, a look at the analytically ... unsatisfying ... 1918 Supreme Court rulings upholding the constitutionality of conscription

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Every Monday morning (including holidays), I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

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On the Docket

The justices handed down three more rulings in argued cases last Thursday:

1. Dupree v. Younger: In a ruling (only) for procedure nerds, Justice Barrett held for a unanimous Court that, when a “purely legal” issue is resolved prior to trial through a motion for summary judgment, the party that lost does not need to re-raise the issue in a post-trial motion in order to preserve it for appeal.

2. Sackett v. EPA: By far the most significant of the three, Sackett involved the EPA’s power to regulate “waters of the United States,” a definition in the Clean Water Act that has long been the subject of vigorous debate as to its scope. Although all nine justices agreed that the Ninth Circuit’s definition was too broad, the Court split 5-4 as to the definition going forward. Justice Alito’s majority opinion held that wetlands are “adjacent” to “waters of the United States” only when they are physically contiguous with such waters (e.g., lakes, rivers, streams). As Justice Kavanaugh pointed out in his opinion concurring in the judgment (joined by Justices Sotomayor, Kagan, and Jackson), this interpretation seems to defy the common definition of “adjacent,” which can mean proximate to without physically adjoining. And although the more permissive test Kavanaugh would’ve adopted would still not cover the Sacketts, the distinction implications the federal government’s power to regulate (and limit pollution of) millions of acres of wetlands, with the majority foreclosing such regulation and the four concurring justices willing to leave the door open.¹

3. Tyler v. Hennepin County: For a unanimous Court, Chief Justice Roberts held that, when government seizes and sells property to settle a tax debt, keeping any excess proceeds of the sale gives rise to a claim under the Fifth Amendment’s Takings Clause. Joined by Justice Jackson, Justice Gorsuch wrote separately to note that such behavior by the county may also have violated the Eighth Amendment’s Excessive Fines Clause.

In addition to the three decisions in argued cases, the Court issued a fourth ruling last week—a “summary reversal” in Calcutt v. FDIC that came down with Monday’s regular Order List. Such a ruling is effectively a merits ruling at the certiorari stage, so that the Court hands down a substantive ruling and judgment based solely on the cert.-stage briefing. In Calcutt, the Court reversed the Sixth Circuit for affirming the FDIC’s sanctions against the former CEO of a Michigan bank on grounds that differed from those relied upon by the FDIC. It’s more than a little unusual for the Court to resolve this kind of administrative law case through a summary adjudication (i.e., with no merits briefing or plenary argument). But it’s also exactly what the Solicitor General proposed here—perhaps to avoid plenary review of the second question presented, which is about the constitutionality of how FDIC board members and administrative law judges are appointed and removed.

One other interesting note from last Monday’s Order List: There was an odd notation at the end of the denial of rehearing in Holland v. Florida. After noting that “Justice Kagan took no part in the consideration or decision of this petition” (boilerplate for when a justice recuses), the order included citations: “See 28 U.S.C. §455(b)(3) and Code of Conduct for U.S. Judges, Canon 3C(1)(e) (prior government employment).” This seems to be the first example of something the justices publicly committed to last month: providing at least a brief public explanation for all recusals (even obvious ones) going forward. It’ll be interesting to see if the other eight justices all follow Kagan’s lead.

The Court is closed today for the holiday, but is set to hand down a regular Order List tomorrow at 9:30 ET, and then one or more decisions in argued cases starting Thursday at 10:00 ET.

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The One First Long Read: The Court and the Draft

In trying to think about an appropriate topic for Memorial Day, I kept coming back to the Supreme Court’s role in upholding conscription during World War I—after there had been rich debates throughout the nineteenth century as to the constitutionality of compulsory military service. Daniel Webster had opposed conscription in 1814; Chief Justice Taney had even written a draft opinion (despite not having a case to write it in) striking down the Enrollment Act of 1863. But the constitutional question didn’t make it to the Supreme Court until a series of cases challenging criminal convictions for refusing induction under the Selective Service Act of 1917 (known colloquially as the Selective Draft Law, hence the popular name for the Supreme Court’s decisions). Enacted six weeks after the United States’ entry into World War I, the Selective Draft Law mandated that all men between the ages of 21 and 30 register for military service (this would be expanded in August 1918 to include men between the ages of 18 and 45). The draft would then be conducted based upon criteria for sorting the registrants, prioritizing those who were unmarried and had no dependents.

Men registering for the selective service in New York City on June 5, 1917

In six of the lead cases, Chief Justice Edward Douglass White (himself a veteran, albeit of the Confederate army) wrote a single, unanimous opinion, which my friend and Columbia law professor Matt Waxman has charitably described as “rambling” and “barely coherent.” In essence, White had to overcome two sets of arguments: First, that Congress lacked the enumerated power to create a draft; and second, that even if it didn’t, compulsory enlistment violated the rights of draftees, especially the Thirteenth Amendment’s ban on involuntary servitude.

The tricky part about the former argument is that the Constitution expressly limits the circumstances in which Congress can “provide for the calling forth of the militia”—only to “execute the laws of the Union, suppress insurrections, and repel invasions.” Fighting in a foreign war isn’t obviously any of those. Thus, as Taney had argued in his draft opinion, Congress’s other enumerated power to “raise armies” should be limited to voluntary enlistments, lest it be a means by which Congress could run roughshod over the Constitution’s protections of state militias.

The argument that Congress’s “raise armies” power has to be limited to voluntary enlistments may have had some purchase in the nineteenth century, but by January 1918 (when the Court decided the Selective Draft Law Cases), it was seen by the justices as almost frivolous. Instead, as Waxman persuasively explains, the best reading of White’s opinion is as

essentially saying that Article I’s power to “raise and support armies” combined with the Necessary and Proper Clause gives Congress wide latitude to assemble an Army by means as it sees fit. Inside Chief Justice White’s tangled mess of an opinion is the key point that the constitutional power to create national military forces is “wisely left to depend upon the discretion of Congress as to the arising of the exigencies which would call it in part or in whole into play.”

In other words, the limits on calling forth the militia simply don’t apply to circumstances in which Congress is augmenting the body of federal regulars. Thus, although the “militia,” as such, can only be used by the federal government in the three constitutional circumstances, the Constitution doesn’t prevent Congress from federalizing the militia, and then using it for any purpose (as the Court would reinforce in upholding the overseas training of National Guard units in Perpich v. Dep’t of Defense).

In this respect, among lots of others, we see the Supreme Court in the context of constitutional war powers analysis yielding to functional considerations and political constraints in lieu of formal constitutional analyses that would require more aggressive judicial policing of exactly what the Constitution permits (presaging the Court’s dogmatic refusal to take up questions about the legality of various aspects of the war in Vietnam). Ironically, the separation of war powers (both between the branches of the federal government and between the federal government and the states) may be the area of modern constitutional analysis in which the original understanding does the least work.

The Court made equally quick work of the Thirteenth Amendment argument, citing an earlier ruling for the proposition that the amendment “introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc.” Of course, the assertion that individuals “owe” military service to the state was question-begging, but so was most of White’s analysis.

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SCOTUS Trivia: Chief Justice White’s Claim to Fame

The central role of Chief Justice Edward Douglass White in the Selective Draft Law Cases gives me an excuse to (re-)tell one of my favorite stories about White.

On July 4, 1910, Chief Justice Melville Fuller died of a heart attack. The then-President, William Howard Taft, was someone who desperately wanted his own opportunity to serve as Chief Justice, and may well have been hoping that he would be able to succeed Fuller (who had just turned 77) after his presidency. Now, though, he had a vacancy to fill, and Taft chose, to almost everyone’s surprise, to fill it with White.

White was an odd choice in three different respects. First, his nomination broke from what had been an unbroken norm to that point—in which no incumbent associate justice had ever been nominated to be Chief Justice. Although two future Chief Justices have followed him (Stone and Rehnquist), White was the first to be elevated from the ranks of currently serving justices. Second, White was a Democrat—and, thus, a strange choice for the Republican Taft. Finally, White was old. 65 at the time of his (second) nomination, White was the oldest nominee confirmed to the Chief Justiceship to that point. (Stone would later pass him; he remains the oldest person to be confirmed to any seat on the Court for his 1941 confirmation as Chief Justice at the age of 68.)

Why did Taft break from norms and customs in 1910 to elevate a 65-year-old Democratic associate justice to the Court’s center seat? The answer comes from who succeeded White: When White died just over a decade later in May 1921, his seat was filled by (Republican) President Warren G. Harding. And Harding filled it with (you guessed it) Taft.

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1. Among other things, Sackett is also a good example of the importance of nuance in press coverage of the Court; a number of outlets reported the decision as “unanimous.” The result was certainly unanimous, but the rationale (which is what really matters for future cases) not only divided the justices 5-4, but was quite sharply contested by the four justices who refused to endorse it.