Over Thomas dissent, high court rejects West Point case

Associate Justice Clarence Thomas sits during a group photo at the Supreme Court in Washington, Friday, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool)
Associate Justice Clarence Thomas sits during a group photo at the Supreme Court in Washington, Friday, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool)

WASHINGTON – The Supreme Court on Monday rejected an appeal from a woman who says she was raped as a West Point cadet, with Justice Clarence Thomas alone arguing that the court should have heard her case.

The woman, who attended the U.S. Military Academy from 2008 to 2010, had sued saying the academy's leadership tolerated a culture that was hostile toward women and failed to provide adequate support for cadets who are assaulted, among other things. But lower courts said her lawsuit against the U.S. government couldn't go forward.

Thomas said in a dissent that the high court should have taken the case to reconsider a 70-year-old precedent that prevents members of the military from suing the United States when they are injured while doing their duties.

It is the second time in as many years he has noted his disagreement when the court has declined to revisit the issue. Thomas says the case the court decided decades ago has led to bizarre and surprising results, including barring the former cadet's case.

“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 in a 3-page dissent.

In the West Point case, lower courts said the woman's claims were barred by the so-called Feres doctrine, which comes from a 1950 Supreme Court case. In it, the Supreme Court held that the Federal Tort Claims Act does not give members of the military the ability to sue the United States for injuries that “arise out of or are in the course of activity incident to" their active duty service in the military.

Thomas wrote that “Feres was wrongly decided; and this case was wrongly decided as a result.” Thomas gave one reason the court may be unwilling to take up the issue.

“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, then the better answer is to bid it farewell,” he wrote. Thomas cited about half a dozen cases where the court had overturned a precedent including the landmark Brown v. Board of Education case, which outlawed segregation in public schools and overturned the court's Plessy v. Ferguson decision.