The men-only draft and compelled iPhone passcodes


This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the men-only draft is unlawful sex discrimination and whether law enforcement can compel testimony in the form of a phone passcode.

The Military Selective Service Act requires men but not women to register for the draft. In 1981’s Rostker v. Goldberg, the Supreme Court upheld the law from a challenge of sex discrimination because women at that time were categorically banned from serving in combat roles. The Department of Defense lifted the ban on women in combat in 2013. National Coalition For Men v. Selective Service System is a challenge to the men-only draft on the ground that the reasoning from Rostker no longer applies to the modern military. The petition further argues that Rostker was itself wrongly decided because the Supreme Court “ultimately justified one sex-based discrimination by reference to another, rather than examining whether the combat ban was itself discriminatory.”

Robert Andrews is a New Jersey police officer who came under investigation for allegedly passing information about a narcotics investigation to the suspect. Investigators seized Andrews’ phones, but they were unable to unlock the phones to access the data. Officials sought a discovery order to compel Andrews to disclose his passcodes, which Andrews argued would violate his Fifth Amendment right against self-incrimination. The New Jersey Supreme Court ruled that a passcode, comprising a series of characters, was of “minimal testimonial value” for which the state could — and had here — overcome the constitutional protection by proving the phones belonged to Andrews. Claiming state and federal courts are divided on this question, the petition in Andrews v. New Jersey asks the justices to weigh in.

Finally, U.S. Citizenship and Immigration Services v. City and County of San Francisco, California is another challenge to the Trump administration’s so-called “public charge” rule. The rule interprets a provision of the Immigration and Nationality Act in which an immigrant can be denied a green card if, “in the opinion of” the secretary of homeland security, the person is likely to become dependent on government assistance. In 2019, the Department of Homeland Security broadened the public-charge determination to include temporary use of benefits such as Medicaid, food stamps and federal housing assistance. Local governments and immigrants’ rights groups have challenged the rule. The Supreme Court has relisted petitions in similar cases, Department of Homeland Security v. New York and Wolf v. Cook County, Illinois

These and other petitions of the week are below:

Broadway v. United States
Issues: (1) Whether courts owe deference to the Sentencing Commission’s commentary when it expands the scope of the Sentencing Guidelines; and (2) whether the rule of lenity and the right to due process preclude deference under Stinson v. United States when commentary to a Sentencing Guideline would increase a sentence.

Fry v. Rand Construction Corp.
Issues: (1) Whether the lower court erred in adopting what is, in essence, a “sole cause” standard for a “but-for” cause, in direct conflict with the Supreme Court’s holdings in Burrage v. United States and Bostock v. Clayton County; and (2) whether the correct causation standard for petitioner Arlene Fry’s Family and Medical Leave Act claim is but-for, motivating factor or negative factor.

Holland v. Westmoreland Coal Co.
Issues: (1) Whether the exception to the Anti-Injunction Act in South Carolina v. Regan — in which the Supreme Court held that the AIA did not bar South Carolina from filing an original-jurisdiction action in the Supreme Court to raise a 10th Amendment challenge to an income tax assessed on private citizens — is available to debtors who want to avoid paying a tax for reasons unrelated to the tax’s validity; and (2) whether Coal Industry Retiree Health Benefit Act premiums are “any tax” protected by the Anti-Injunction Act.

Jackson v. Hudson
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel to the petitioner in this case.
Issue: Whether 28 U.S.C. § 2255 — which allows a person in federal custody to challenge the legality of his detention by filing a post-conviction motion, as well as a petition for a writ of habeas corpus under 28 U.S.C. § 2241 if the Section 2255 remedy is “inadequate or ineffective to test the legality of his detention” — is “inadequate or ineffective” when, at the time of petitioner’s initial Section 2255 motion, circuit precedent foreclosed a potential claim, but that precedent has since been overruled by the Supreme Court.

National Coalition For Men v. Selective Service System
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.

Andrews v. New Jersey
Issue: Whether the self-incrimination clause of the Fifth Amendment protects an individual from being compelled to recall and truthfully disclose a memorized passcode, when communicating the passcode may lead to the discovery of incriminating evidence to be used against him in a criminal prosecution.

U.S. Citizenship and Immigration Services v. City and County of San Francisco, California
Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained in 8 U.S.C. § 1182(a)(4)(A), and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the final rule that an alien is “inadmissible” if, “in the opinion of the [Secretary of Homeland Security] at the time of application for admission or adjustment of status, [the alien] is likely at any time to become a public charge”; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.

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