After the Supreme Court decided not to hear the case of a former West Point cadet who wants to sue the federal government for her alleged rape on the campus, Justice Clarence Thomas wrote a dissenting opinion. Thomas, who faced past allegations of sexual assault himself, called out his colleagues on the Court Monday.
Thomas said that if the Court had taken up the case Jane Doe v. United States, they would have had the chance to “clarify the scope of the immunity we have created.”
First came the Feres v. United States case in 1950, which set a precedent that members of the military could not sue the government. It went against the Federal Torts Claim Act, which means that the government can be sued in place of individuals, especially military members, that act in the name of the United States. Because this act protects Jane Doe, by not hearing her case, the Court sets the precedent that she cannot also use it to her advantage.
But Thomas pointed out that the 1950 ruling came from a suit that happened in a time of war. He believes the precedent cannot be applied to time spent at a military academy.
“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 on the merits,” Thomas wrote. “Nothing in the text of the Act requires this disparate treatment.”
The longest-serving justice challenged his colleagues in his dissent. “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,” Thomas wrote. “But if 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.”