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

Thomas’ dissent from the Court’s order was a rare moment where the conservative justice sided with the ACLU, however it was also an opportunity for Thomas to remind the Court that there are certain precedents he would be OK with left entirely.
The situation available, Jane Doe v. United States, is an appeal from the U.S. Court of Appeals for the Second Circuit over whether a service member is eligible to bring suit against the authorities.
Doe’s case supplies SCOTUS having an chance to overrule the 1950 case that decadent suits like Doe’s against the military. Feres v. United States was a unanimous decision that created the widely criticized”Feres Doctrine,” which protects the authorities from protecting a broad range of tort lawsuits that otherwise may be blindsided by members of the military.
Doe filed a petition for certiorari, arguing that SCOTUS should take up her case, overrule Feres, and side with survivors of sexual abuse at military academies. By 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 shield victims. Ms. Doe suffered the complete ramifications of West Point’s blatant disregard of DOD policies May 8, 2010, when she was assaulted by a fellow cadet. Ms. Doe was attacked in an instructional building, after-hours, throughout the course of a recreational nighttime walk. She sought immediate medical attention from West Point, which once again failed to comply with mandatory military directives or to give appropriate medical and psychological support. Three weeks later, she resigned and left the college. Ms. Doe’s death was a bitter loss for a young girl who had dreamed of visiting her nation. It was likewise a tragic loss to the state of a promising future soldier.
The American Civil Liberties Union (ACLU) and multiple other organizations filed amicus briefs, supporting Doe’s situation and asserting that it’s time to get the Feres doctrine to proceed.
As is the usual practice in a denial of certiorari, the Court did not release data suggesting the breakdown of votes. Justice Thomas, however, written a three-page dissent from the Court’s order.
Thomas argued that Doe should have been permitted to bring her case against the federal authorities, calling attention to the illogic of a principle which enables authorities contractors to sue for tort when government workers cannot. Though Congress had not specifically illegal lawsuits like Doe’s in the FTCA,”70 decades ago, this Court made the policy decision that members of the military shouldn’t be able to sue for injuries incident to military service,” pointed out the prosecution.
Calling a prohibition against lawsuits by military members a strategy encouraged by”little justification,” Thomas bluntly composed,”Feres was wrongly decided; this case was erroneously decided as a outcome.”
At a pragmatic manner of composing, Thomas provided multiple examples of how the Feres doctrine generates unfair results. “Under our precedent,” he explained,”if two Pentagon employees– just one civilian and one a servicemember–would be hit by a bus in the Pentagon parking lot along with sue, it may be that just the civilian could have an opportunity to litigate his claim.” Thomas went , saying the Feres doctrine is not simply a terrible principle, but also tends to be implemented inconsistently.
“Feres seemingly uttered a claim to get a servicemember’s injury while waterskiing because the recreational vessel belonged to the military, but not for an accident whilst attending a rugby event caused by a servicemember’s negligent performance of an Army van,” Thomas wrote.
Justice Thomas had words to get a Court he indicated is more concerned with stare decisis than it should be. Criticizing a bench which might have picked to prevent Doe’s situation,”because it would need fiddling with a 70-year-old precedent that’s demonstrably wrong,” Thomas schooled his coworkers,”However when the Feres doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell.” Remarking that”there is precedent” for throwing out a wrong-footed precedent,” Thomas listed numerous cases in which the Court has done exactly that, such as Korematsu v. United States, Brown v. Board of Education, also Erie R. Co. v. Tompkins.
He encouraged the court to follow that strategy.
[Picture via Erin Schaff-Pool/Getty Images]
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