The Volokh Conspiracy

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Justice Thomas still wants to overrule the Feres Doctrine. Justices Gorsuch, Kavanaugh, and Barrett apparently do not.

Wiping out a Justice Jackson opinion may be too much to bear.


In 1950, Justice Jackson wrote the majority opinion in Feres v. United States. He held that members of the military cannot sue the government for injuries "incident to service," even if the activities are unrelated to combat. For decades, Justices Scalia and Thomas have argued that this precedent is inconsistent with the Federal Torts Claims Act. And for decades, litigants have asked the Court to reconsider this precedent. The latest petition came from Jane Doe, a West Point cadet who alleged she was raped by another cadet. Under the Feres doctrine, her claim was dismissed.

Today, the Supreme Court denied Doe's cert petition. Justice Thomas dissented from the denial of cert. He recounted the flaws with Feres, stretching back to a 1987 Scalia dissent.

As I have previously explained, this approach has little justification. The Act "'renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees.'" Lanus v. United States, 570 U.S. 932 (2013) (THOMAS, J., dissenting from denial of certiorari) (quoting United States v. Johnson, 481 U. S. 681, 693 (1987) (Scalia, J., dissenting)); see also Daniel v. United States, 587 U. S. ___, ___–___ (2019) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1–2). Emphasizing its breadth, the law contains a narrow carve out for military-related claims: those "arising out of . . . combatant activities . . . during time of war." 28 U. S. C. §2680(j). This single military exception involving "combatant activities" clearly does not apply here. And, other than this specific exception, the law does not "'preclud[e] . . . suits brought by servicemen'"—at least not because of their military status. Lanus, 570 U. S., at 932. Feres was wrongly decided; and this case was wrongly decided as a result. 

We should follow it. 

Justice Scalia was willing to call out Feres on his very first term on the bench. Yet, the three Trump appointees are silent. Do they agree with Feres? Do they think this precedent is too well settled? Or is the thought of reversing Justice Jackson too much to bear? And really, this vehicle would be a perfect way to build consensus on overruling erroneous precedents. The only reliance interests favor the government keeping damages claims out of court. And Congress could easily remedy this decision if the Court messed up. Would Kagan and Sotomayor really stand by precedent to maintain a rule that bars rape allegations from federal court? Justice Ginsburg was willing to revisit the Feres doctrine in 2019. This case seems to be an excellent vehicle. Thomas plus three equals cert. Alas, silence.

Justice Thomas suggests that his colleagues may be uncomfortable with wiping out a seventy year old precedent. And he includes a lengthy string cite of precedents that were overruled:

Perhaps the Court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong. But if the Feres doctrine is so wrong that we cannot figure out how to rein it in, thenthe better answer is to bid it farewell. There is precedent for that approach. See, e.g., Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 38) (overruling Korematsu v. United States, 323 U. S. 214 (1944)); Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 882 (2007) (overruling Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911)); Lapides v. Board of Regents of Univ. System of Ga., 535 U. S. 613, 623 (2002) (overruling Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945)); Exxon Corp. v. Central Gulf Lines, Inc., 500U. S. 603, 612 (1991) (overruling Minturn v. Maynard, 17 How. 477 (1855)); Malloy v. Hogan, 378 U. S. 1, 2, 6 (1964) (overruling Twining v. New Jersey, 211 U. S. 78 (1908)); Brown v. Board of Education, 347 U. S. 483, 494–495 (1954) (overruling Plessy v. Ferguson, 163 U. S. 537 (1896)); Erie R.Co. v. Tompkins, 304 U. S. 64, 79–80 (1938) (overruling Swift v. Tyson, 16 Pet. 1 (1842)).

I can quibble with a few of these items. Trump v. Hawaii did not overrule Korematsu. The "Court of History" is not a real Court. And Brown did not really overrule Plessy. Chief Justice Warren merely said "separate but equal" has no place in the doctrine of public education. But a useful string citation no less.

If the Court finds a way to overturn this Jackson precedent, may I add another to the list: Wickard v. Filburn.