Justice Thomas Goes to Bat for West Point Rape Survivor: It Is Time to Overturn’Demonstrably Incorrect’ Precedent

Thomas’ dissent in the Court’s order was a rare moment at which the conservative justice sided with the ACLU, however it was also an opportunity for Thomas to remind the Court that there are particular precedents he’d be OK with left entirely.
The case at hand, Jane Doe v. United States, is a charm in the U.S. Court of Appeals for the Second Circuit on whether a service member is entitled to bring suit against the government. Under the prevailing case law, military personnel are banned from suing the federal government because the USA has sovereign immunity under the Federal Tort Claims Act (“FTCA”).
Doe’s case provides SCOTUS having an opportunity to overrule the 1950 event that decadent suits like Doe’s against the military. Feres v. United States was a unanimous decision that made the widely criticized”Feres Doctrine,” which shields the authorities from protecting a vast range of tort lawsuits that otherwise may be waged by members of their military.
From Doe’s petition:
West Point and its leaders fostered a sexually aggressive and misogynistic environment, neglected to punish rapists and other sexual assailants, also neglected to implement mandatory DOD directives and instructions to protect victims. Ms. Doe endured the full ramifications of West Point’s blatant disregard of DOD policies on May 8, 2010, when she had been raped by a fellow cadet. ¬† She desired immediate medical attention in West Point, which once again failed to comply with mandatory military directives or to offer proper medical and psychological support. Three months later, she resigned and left the school. Ms. Doe’s death was a bitter loss to a young woman who had dreamed of serving her country. It was also a tragic loss to the nation of a promising future soldier.
The American Civil Liberties Union (ACLU) and several other organizations filed amicus briefs, encouraging Doe’s case and asserting that it is time for the Feres doctrine to go.
Without opinion from the Court’s majority, the Supreme Court declined to hear Doe’s case. As is the usual practice in a denial of certiorari, the Court did not release information indicating the breakdown of votes. Justice Thomas, but penned a three-page dissent in the Court’s order.
Thomas contended that Doe must have been allowed to deliver her case against the national government, calling attention to the illogic of a principle that enables government contractors to sue for tort when government workers cannot. Though Congress hadn’t specifically prohibited lawsuits like Doe’s from the FTCA,”70 decades back, that this Court made the policy judgment that members of their military shouldn’t be able to sue for injuries incident to military service,” pointed out the justice.
Implementing a prohibition against lawsuits by military members a strategy supported by”little justification,” Thomas bluntly composed,”Feres was wrongly decided; and this case had been wrongly decided as a result.”
At a pragmatic manner of writing, Thomas given multiple examples of how the Feres doctrine generates unfair results. “Under our precedent,” he said,”if two Pentagon employees–¬†just one civilian and one a servicemember–are hit by a bus in the Pentagon parking lot along with sue, it can be that just the civilian would have an opportunity to litigate his claim” Thomas went , saying the Feres doctrine isn’t merely a poor principle, but also has been implemented inconsistently.
“Feres apparently forecloses a claim for a servicemember’s harm while waterskiing because the recreational ship belonged to the military, but not for an injury whilst attending a French occasion caused by a servicemember’s negligent performance of an Army van,” Thomas wrote.
Justice Thomas had words for a Court he indicated is much more concerned with stare decisis than it should be. Criticizing a seat that might have picked to prevent Doe’s case,”because it might need trivial using a 70-year-old precedent that’s demonstrably wrong,” Thomas schooled his coworkers,”But if the Feres doctrine is so wrong that we cannot work out how to rein it in, then the better response is to bidding it farewell.” Remarking that”there is precedent” for throwing out a wrong-footed precedent, Thomas listed numerous cases where the Court has done exactly that, such as Korematsu v. United States,” Brown v. Board of Education, along with Erie R. Co. v. Tompkins.
He encouraged the court to follow this approach.
[Picture via Erin Schaff-Pool/Getty Images]The post Justice Thomas Goes to Bat for West Point Rape Survivor: It’s Time to Overturn’Demonstrably Incorrect’ Precedent first emerged on Law & Crime.