Clarence Thomas Sides With ACLU After SCOTUS Rejects Military Rape Case
The United States Supreme Court on Monday refused to hear a case brought by a military rape survivor and the American Civil Liberties Union against the federal government. The Court did not provide a reason for its ruling.
The case at hand, 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 entitled to bring suit against the government. Under the prevailing case law, military personnel are prohibited from suing the federal government because the United States has sovereign immunity under the Federal Tort Claims Act (“FTCA”).
Doe’s case provides SCOTUS with an opportunity to overrule the 1950 case that foreclosed lawsuits like Doe’s against the military. Feres v. United States was a unanimous decision that created the widely criticized “Feres Doctrine,” which protects the government from defending a wide range of tort lawsuits that otherwise might be waged by members of the military.
In a rare move, Justice Clarence Thomas disagreed with the Court’s decision to not hear the case, arguing in a lone, three-page dissent that Feres should be overturned because its premise is legally inconsistent and unfair.
“Feres was wrongly decided; and this case was wrongly decided as a result,” Thomas said.
“Under our precedent, if two Pentagon employees— one civilian and one a servicemember—are hit by a bus in the Pentagon parking lot and sue, it may be that only the civilian would have a chance to litigate his claim,” Clarence opined. “Feres apparently forecloses a claim for a servicemember’s injury while waterskiing because the recreational boat belonged to the military, but not for an injury while attending a rugby event caused by a servicemember’s negligent operation of an Army van.”