Justice Thomas Goes to Bat for West Point Rape Survivor: It Is Time to Overturn’Demonstrably Incorrect’ Precedent
Justice Clarence Thomas was the only member of the Supreme Court to talk out Monday, criticizing the Court’s refusal to hear the event of a West Point cadet who said she had been raped by a fellow cadet. Thomas’ dissent in the Court’s order was a rare moment where the conservative justice sided with the ACLU, but it was also an opportunity for Thomas to remind the Court that there are particular precedents he would be fine with abandoning altogether.
The case at hand, Jane Doe v. United States, is an appeal in the U.S. Court of Appeals for the Second Circuit on if a service member is entitled to bring suit against the authorities. Under the prevailing case law, military personnel are banned from approving the federal authorities since the United States has sovereign immunity under the Federal Tort Claims Act (“FTCA”).
Doe’s case supplies SCOTUS having an opportunity to overrule the 1950 case that decadent suits like Doe’s against the military. Feres v. United States has been a unanimous choice that created the widely criticized”Feres Doctrine,” which protects the government from defending a broad assortment of tort suits that otherwise might be blindsided by members of the military.
Doe filed a petition for certiorari, arguing that SCOTUS should take her up, overrule Feres, and facet with survivors of sexual abuse at military academies. By Doe’s request:
West Point and its leaders endangered a sexually competitive and misogynistic environment, neglected to punish rapists and other sexual assailants, also didn’t implement mandatory DOD directives and instructions to help protect victims. Ms. Doe endured the full consequences of West Point’s blatant disregard of DOD policies May 8, 2010, when she had been raped by a fellow cadet. Ms. Doe was assaulted in an academic building, after-hours, during the course of a recreational night walk. She sought prompt medical care from West Point, which once again failed to comply with mandatory military directives or to provide 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 woman who’d dreamed of serving her country. It was likewise a tragic loss to the state of a promising future soldier.
Even the American Civil Liberties Union (ACLU) along with multiple other organizations filed amicus briefs, supporting Doe’s case and asserting that it’s time to get the Feres doctrine to go.
Without comment from the Court’s majority, the Supreme Court declined to hear Doe’s case. As is the typical practice at a denial of certiorari, the Court failed to release data suggesting the breakdown of votes. Justice Thomas, but written a three-page dissent in the Court’s order.
Thomas contended that Doe should have been allowed to bring her case against the national authorities, calling attention to the illogic of a principle that allows authorities contractors to sue for tort when government employees cannot. Although Congress had not specifically prohibited lawsuits like Doe’s in the FTCA,”70 decades back, this Court made the policy decision that members of the military shouldn’t have the capacity to sue for injuries incident to military service,” pointed out that the justice.
Implementing a prohibition against suits by military members a strategy encouraged by”little rationale,” Thomas bluntly composed,”Feres was wrongly decided; and this case had been erroneously decided as a result.”
At a pragmatic fashion of writing, Thomas given multiple examples of the Feres doctrine generates unfair outcomes. “Under our precedent,” he said,”if two Pentagon employees– one civilian and one a servicemember–are hit by a bus at the Pentagon parking lot and sue, it could be that just the civilian would have an opportunity to litigate his claim” Thomas went on, stating the Feres doctrine is not only a terrible principle, but also tends to be applied inconsistently.
“Feres seemingly uttered a claim to get a servicemember’s harm while waterskiing since the recreational vessel belonged to the military, but not for an injury whilst attending a rugby event brought on by a servicemember’s negligent operation of an Army van,” Thomas wrote.
Justice Thomas also had words to get a Court that he suggested is much more concerned with stare decisis than it ought to be. Criticizing a seat that may have selected to prevent Doe’s case,”since it would need trivial using a 70-year-old precedent that is demonstrably wrong,” Thomas schooled his coworkers,”But when the Feres doctrine is so wrong that we can’t work out how to rein it in, then the better answer is to bidding it farewell.” Remarking that”there is precedent” for projecting out a wrong-footed precedent,” Thomas recorded numerous cases where the Court has done just 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 approach.
[Picture via Erin Schaff-Pool/Getty Pictures ]
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