Justice Thomas stands alone in push for Supreme Court to take on military rape case

Throughout his time on the Supreme Court bench, Justice Clarence Thomas has always shown a willingness to stand alone when he believes that justice demands it.

That trait was on stunning display again this week when Thomas criticized his colleagues for deciding not to hear a lawsuit from a former West Point cadet.

Court declines case

According to the Washington Examiner, the plaintiff, identified as Jane Doe, alleged that she had been the victim of sexual assault in 2010 at the hands of a fellow cadet at the New York military academy.

Doe’s attorneys argued that West Point bore some responsibility on the grounds that its policies were “inadequate to protect students from sexual violence,” the Examiner reported.

But the Supreme Court’s majority chose not to take the case, deciding that Doe’s claims were precluded from being brought by a precedent set in the 1950 case Feres v. United States, which held that injuries stemming from military service were not legally actionable.

Thomas, for his part, disagreed with the majority’s rejection, contending in a dissent that the plaintiff would be permitted to sue under the Federal Tort Claims Act (FTCA).

Thomas doubles down

Thomas went on to say that the SCOTUS had unnecessarily created a measure of legal ambiguity, since by not taking the case, the court had passed up on an opportunity to clarify exactly who is barred from taking civil action and under what circumstances.

“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,” he argued, according to the Examiner. He suggested the Feres case set a “precedent that is demonstrably wrong” and lamented the opportunity to overturn it, as Fox News reported.

Thomas also took issue with the idea that the woman’s injury was service-related, remarking: “One might be concerned to find out that a student’s rape is considered an injury incident to military service.”

Scholars weigh in

An amicus brief submitted by a group of legal scholars disagreed with the majority’s decision, as well. “The only thing connecting Ms. Doe’s rape to military service was her enrollment at West Point,” they said, according to the Examiner.

Like Thomas, the group argued that the Supreme Court’s incident-to-service exception is illegitimate as it “finds no support in the text of the FTCA.”

It also charged that the doctrine “has been interpreted increasingly broadly to include any injury that an active service member suffers at the hands of the government — no matter how far removed from his or her actual military duties.”

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