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.

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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.

NEXT: SCOTUS Appoints Gail A. Curly as Marshal of the Court

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  1. This case you don’t even have to overrule it, you could just limit it. Like the incredulity of, hang on, rape is incidental to being part of the military? Like that’s not a training accident … you can make the argument that you open yourself up to the possibility of injury by being part of the military, but rape? Seriously?

    And I can understand the military’s response, like, hey, it isnt our fault this happened it was the fault of the serviceman who committed this act … which, fine. I’m not even saying she should win. But you don’t need Feres to make that argument. That is a defense available without relying on soverign immunity.

    And why the double standard? A private organization can be sued for negligence even if this sort of thing happens and it isn’t the organizations fault … either give private organizations the same immunity or just forget it altogether.

  2. It’s statutory stare decisis. Congress can change it if it wants to. And it may not even be wrong- e.g., would Thomas argue that Totten v. United States, holding that US spies can’t sue the government, should also be overruled?

    But also, of course, stare decisis is really important, and there are good reasons the rest of the Court thinks Thomas’ “anything I disagree with should be overruled” jurisprudence is terrible. The judicial power of Article III is the common law legal system we inherited from the British, which includes stare decisis. If Thomas doesn’t like it, he should push for a constitutional amendment to change it rather than trying to read his personal preferences into the Constitution.

    1. Ok, I take that, but even assuming Feres … rape is incidental to being a servicemember? That sounds deeply problematic. If Feres forecloses that result, which it looks like it does in this particular case (you can’t prove the military’s policies were responsible when, if the policies were responsible, they are protected under Feres) then perhaps it ought to be limited?

      Sure state decisis, but limiting or clarifying the scope of a prior precedent when it goes wrong is something the court does all the time.

    2. “Stare decisis is not an inexorable command.”

      1. Right. It’s also not a suggestion either, which Thomas appears to believe it is.

        1. Right. If Thomas pitched his argument by citing the multipart test the Court uses in analyzing stare decisis and says “here’s why I think Feres presents a compelling case to be overruled under that test”, I wouldn’t complain about that at all. But his arguments are almost always just “I thinkn it’s wrong, it should be overruled”, which means he just fundamentally does not understand the role of stare decisis in a common law system.

          1. Well, surely he understands. He just isn’t inclined to follow it when it gets in the way of his objectives.

            1. Some of his (and Gorsuch’s) objectives are just needless contrarianism. I mean no one wants to overrule International Shoe, and it is a perfectly serviceable if occasionally messy rule on certain facts, but they just throw it out there anyway.

              1. I think if you understand the mindset as wanting to water down SD into nothingness over the long term, then it makes sense to pounce on every immediate opportunity to overrule a precedent.

              2. no one wants to overrule International Shoe

                Speak for yourself. Taxation is theft.

                -jcr

          2. “arguments are almost always just “I thinkn it’s wrong, it should be overruled””

            No, his argument is that the text of the statute [This single military exception involving “combatant activities” clearly does not apply here.] was ignored. Is that correct or not?

            Your worship of stare decisis is misplaced. The courts should get things right, not rely on prior incorrect decisions because they are old.

            1. But—and I haven’t checked—wasn’t the Act the same at the time Feres was decided? If so, then exactly what new thing is Thomas bringing to the table other than unhappiness with the decision? And how is that any different from Dilan’s characterization?

              It’d be way more refreshing if T just said outright he has no concern for SD. But I guess he can’t bring himself to do that.

              Call it Feres Precedent’s Day Off.

            2. SD is a legal cop out. If judges used ends justified the means logic instead of simple original meaning then why should future judges be constrained by their bad faith?

              1. Because unlike original meaning (which nobody knows anyway), stare decisis is an actual constraint on judges doing what they want. It is, in fact, the one constraint that really works.

                1. But the blind following of SD means that if the court gets something wrong then an injustice becomes codified and without recourse.

                  SD as a guide is a very good principle. To go against precedent shouldn’t be done lightly. But it shouldn’t be so big a hurdle that it is functionally no longer an option.

                  And a concern that principles of the Constitution, of rights of the citizen being supreme to the wishes and whims of the state, of freedom over subjugation… those are good enough reasons to at least consider revisiting previous rulings.

                  The court ruling the sky purple does not make it so. That it is plainly wrong is all the justification one needs to offer to void the precedent. While cases are not going to be so clear cut, there are ample areas where people’s pragmatic political wishes have arguably run afoul of fundamental founding ideals.

                  1. The principles undergirding the revolution are superior to SD. It is far more important that the former are vindicated than the latter.

                    1. That is my point as to why SD has a place in ethics and justice… but never to a point they run contra to fundamental princi

                    2. Ugh… my imaginary horse for a real edit button.

                      Anyway…

                      Last word is principles.

                2. “Because unlike original meaning (which nobody knows anyway)”

                  Oh, come on now. Give up on this silly “everything is radically indeterminant!” notion. Original meaning is usually quite easy to determine, most of the time it just comes down to textualism. If the statute says “No”, it doesn’t mean “Yes”, and so forth.

                  1. Its their job to discover ‘original meaning’ and faithfully apply it. Anything else is illegitimate. Saying ‘nobody knows’ is just a lame excuse and very disingenuous IMO. Its their job to figure out, using all their considerable resources, what the MOST reasonable meaning of the law was when it was passed.

                    1. This discussion reminds me of something described in “No More Wacos”: the Branch Davidians had put out a banner on their compound in the middle of the police action, saying “We want to talk to the Press”, and the Press wondered just what they meant by that.

                      In a similar way, plain language (even if the language has changed since the law or the Constitution had been written — it’s not that hard to figure out how meanings of words have changed since they were originally used!) is implied to be impossible to discern.

                3. stare decisis is an actual constraint on judges doing what they want

                  It’s also a constraint on overturning asinine decisions like Wickard.

                  -jcr

        2. At the Supreme court level, that IS all it is. It’s only a command for the lower courts.

          1. It’s a command in the sense that it is mandated by the Constitution. It’s part of the “judicial power”.

            Yes, the Supreme Court can dispense with it in particular cases, but not simply because Justice Thomas personally opposes a preccedent.

            1. And if it is just Thomas making the argument and no one agrees… precedents will last.

              If he makes the argument (which many here seem to imply he shouldn’t even be allowed to do because they simply disagree with him) and convinces other justices that he is right… then SCOTUS can and should over ride previously troublesome rulingd.

            2. Yes, the Supreme Court can dispense with it in particular cases, but not simply because Justice Thomas personally opposes a preccedent.

              But, I mean, that’s literally true. If it’s just simply that Justice Thomas personally opposes a precedent, then it will stand 8-1. It requires at least 4 other people agreeing with Justice Thomas to dispense with it.

            3. So if original precedent was overturned in the past is it now illegitimate to overturn it a second time to align more with the correct meaning of law? You seem to argue that its more important to keep bad law than correct it.

          2. Ample precedent of UK courts say that’s not the case.

            Of course, if you want to discard Founders’ intent without a bounding principle, you can go wild.

            But that would make you just the worst, if I recall right-wing mischaracterizations of non-originalist judges.

    3. Now do qualified immunity.

  3. I oppose immunities of all kinds, since immunity justifies violence in formal logic. Question: female are equal, including in combat infantry, right? How come they cannot handle an impudent pig who is a masher, unless he is armed? Why are they always suing people other than the rapist? What are other people supposed to do that they cannot?

  4. Thomas is wrong for once. The military is sui generis.

  5. Injured service members are not a class whose interests Congresscritters are unlikely to overlook. Feres, right or wrong, interpreted an act of Congress. Seventy years ago. Congress was, and remains, free to tell the Court that it misunderstood Congress then, or that Congress has since changed its mind. It hasn’t in 70 years. That counts for something.

    1. Oops, that should read “likely to overlook.” Why no edit function?

    2. It just shouldn’t count as much as the actual words of the statute.

      Sometimes the courts will misinterpret a statute to transform it into something a majority or at least blocking plurality of Congress may wish they could have gotten away with enacting, and Congress in those cases find that just not lifting a finger to correct the mistake gets them what they want without the political hit of actually having passed such an act.

      Still, we shouldn’t excuse the courts misinterpreting a statute, just because Congress appreciates being spared a bit of accountability.

      1. Well, if you assume bad faith all around, it’s so much easier.

        1. I’m in my sixties, and I’ve been observing politics for most of my life. I’m not assuming bad faith, I’m observing bad faith.

          1. Except your evidence is always ‘I disagree with these guys so hard I can’t help but assume they know I’m right and are lying about it.’

            Well, when it’s not ‘my ideology cannot be unpopular; there must have been secret coordination amongst the media/industry/education/politician/judicial libs.’

          2. OK, so let’s observe. What constellation of political forces explains why Congress wouldn’t correct the alleged Feres mistake. Did Congress always want the military exclusion but was afraid it couldn’t pass it back then? And is now happy that the Court did its dirty work for it? How do you know? Is there some current political reason that Congress wouldn’t want to help injured service members? What is it? And how do you know?

  6. What would Patton say?

    1. As I recall, ‘Damn the Torpedoes, Full Speed Ahead!’

      1. Pretty sure that wasn’t Patton.

  7. Isn’t this the kind of thing Congress should clear up by explicitely stating something it has control over, lawsuits against the government, to something else it has control over, the military, and speak loudly and with purpose the course for the nation?

    Ah hahahahahaha oh god, the laugh brings a tear to the eye

  8. This was the case at issue for the fact pattern in my moot court finals — affirm, modify or abrogate Feres? This was 1991.

    We were supposed to be in front of the United States Supreme Court, and were dealing with the reversal of an affirmance of a reversal of . . . The last 60 seconds of my argument, I got confused and started arguing the other side. The judges, who had been half asleep, suddenly opened their eyes in amazement and I thought I was finally getting through to them.

  9. Brown didn’t overrule Plessy v. Ferguson?!?

    Care to elaborate on that one?

    Some of us plebeians in the field of education believe that it did, and if it didn’t, I’d really like to know why and the rest….

    1. “And Brown did not really overrule Plessy. Chief Justice Warren merely said ‘separate but equal’ has no place in the doctrine of public education.”

      That should be enough explanation already, but I can add some more anyway. Brown also “rejected” “[a]ny language in Plessy v. Ferguson contrary to th[e] finding” about the effects of segregation on A-A schoolchildren. That was it though. While it de facto overruled Plessy, it certainly did not do so explicitly. There wasn’t even a cursory SD analysis, let alone a full-blown one.

      So, while Blackman just “quibbles” with Thomas’ characterization, he’s being unnecessarily generous. What Thomas did was misleading and deceptive. He can get away with it because he answers to no one, but if any lawyer did that in a brief, I think the judge would unleash quite a can of whoop-ass. The irony though is that Thomas’ dishonesty is pointless too. Brown was a constitutional case, but Feres is statutory, which entails fairly different SD considerations. So mischaracterized or not, it’s still for the most part irrelevant.

      1. If I understand you correctly…

        We can still have separate passenger cars on trains based on race even under Brown? (There may be a different case that stops that practice, but you seem to be implying that Brown only prohibits following Plessy in the ed industry but no where else.)

        If the argument is that Brown signaled, functionally, to all walk of life but only technically applied to the question before it… that seems like a pointless and ultimately naval gazing style of splitting hairs where for everyone else in the world, in any functional sense, Brow did undo Plessy.

        Am I missing something?

        1. I think we’re 90% on the same page. Let me address the remaining 10% as follows:

          “you seem to be implying that Brown only prohibits following Plessy in the ed industry but no where else.”

          Yes, Brown prohibited SbE in education, but I wasn’t implying that; I said it in as many words (or so I thought!). I didn’t—or at least didn’t mean to—imply that Brown signaled that Plessy was still fair game anywhere outside education. Brown in fact conveyed (no railroad pun) the exact opposite.

          “Brown … only technically applied to the question before it”

          I don’t know what you mean by “technically”—Brown did apply to the important question before it, end of story.

          “in any functional sense, Brow[n] did undo Plessy”

          Yes, I agree, and I thought I said as much above. That also takes me to the final part of the 10%.

          “We can still have separate passenger cars on trains based on race even under Brown?”

          The specific Louisiana statute was long since repealed. I’m also not aware of similar laws currently on the books elsewhere. So first some jurisdiction would have to enact a law to re-segregate passenger cars. That seems more than a little unlikely. Assuming that ever happened, then someone would also have to enforce the law. That’s quite another big if. But in theory, it’s technically possible. Let’s say that both of those happened. You would have a court challenge immediately. But at that point, you’ll get one of two possible outcomes. The first is that a lower court will find that, in light of Brown (and subsequent developments), Plessy is no longer sustainable and the law is accordingly unconstitutional. The second is that, if the lower courts for some reason happen to uphold the law, SCOTUS will just summarily reverse and overrule Plessy expressly. So again, while even today it’s a technical possibility, the neon writing is on the wall about such a law’s eventual fate.

  10. “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is al- ready obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).“

    “Make express” and “has no place in law under the Constitution” sound pretty clearly like overruling to me.

    Seems Roberts is saying: ‘Korematsu has already been overruled in the court of history. Now we’re doing it expressly.”

  11. Time to watch “The Winslow Boy” again. Let right be done.

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