On Monday, Justice Clarence Thomas challenged the Supreme Court ruling not to hear the case of a West Point cadet who says she was raped and wants to sue the federal government alleging it did not do enough to prevent sexual assault on campus.
The woman, named Jane Doe in Jane Doe v. United States, was not allowed by lower courts to sue the government due to a 1950 Supreme Court precedent. In that case, the court ruled that members of the military cannot sue the government under the Federal Tort Claims Act.
Doe’s appeal to the Supreme Court failed when the court refused to hear his case on Monday. But Thomas disagreed with his colleagues, writing that the 1950 case was wrong and that the court should have taken the case and set it aside, allowing the woman’s claim to continue. .
Thomas said that the small “exclusion from the law for military-related claims: those” arising out of … activities of combatants … in time of war “” was clearly not intended to apply to a situation like sexual assault in a military academy.
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Therefore, said Thomas, the 1950 case called Feres v. The United States and, by extension, the Doe case have been poorly decided.
“According to our precedent, if two Pentagon employees – a civilian and a military – are struck by a bus in the Pentagon parking lot and file a lawsuit, it may be that only the civilian has a chance to argue their claim on the background, ”Thomas wrote. “Nothing in the text of the law requires this disparate treatment.”
Thomas’ dissent comes amid growing momentum in Congress and among activist groups to increase protections against sexual assault in the military, many citing alarming reports of widespread sexual violence. Five separate groups of activists weighed in backing Doe with briefs to the Supreme Court before refusing to take up the case on Monday.
Additionally, a bipartisan group of senators introduced legislation last week to change the way the military deals with sexual assault. The coalition included Senator Kirsten Gillibrand, DN.Y .; Chuck Grassley, R-Iowa; Richard Blumenthal, D-Conn .; Ted Cruz, R-Texas; and Mark Kelly, D-Ariz.
“Sexual assault in our military is an epidemic and it is clear that the current system is not working for survivors. Despite repeated efforts to protect our women and men in uniform, rates of harassment and assault continue to rise. ‘increase while prosecutions decrease, “Gillibrand said in a statement. declaration.
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“As a former combat commander and survivor of sexual assault, I understand the traumatic experiences that too many of our servicemen have had,” added Sen. Joni Ernst, R-Iowa, also co-sponsor of the bill. . “Sexual assault has no place in our military – or anywhere else – and it is high time we took more action to prevent and reduce these heartbreaking crimes.”
According to Gillibrand’s office, nearly 21,000 soldiers were sexually assaulted in 2018.
Thomas said Monday that the Supreme Court should at least take Doe’s case to “clarify the scope of the immunity we have created,” but urged going further to overthrow Feres completely.
The oldest justice has expressed itself more and more in recent years on the fact that it does not hesitate to reverse a precedent which it considers to be erroneous, while other judges continue to rely on the precedents. in most of the cases.
Thomas has specifically stated on several occasions that he believes the court should challenge Roe v. Wade, the decision that created an abortion right, and set it aside. This is despite the fact that even other conservative-leaning judges seem reluctant to do the same, given how deeply it is enshrined in law and how many rely on the ruling to date.
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“Perhaps the Court is reluctant to address this issue because it would require playing with a 70-year-old precedent that is patently bogus,” Thomas wrote on Monday of the Feres case. “But if the Feres Doctrine is so wrong that we can’t figure out how to get it under control, then the best answer is to say goodbye to it.”
Thomas went on to cite numerous other times where the Supreme Court has overturned its previous cases, including Brown v. Board of Education, which quashed Plessy v. Ferguson.
In 2019, Thomas advocated for the Supreme Court to reverse Feres in the case of a man who sued the government after his wife died of complications from giving birth at a naval hospital. Judge Ruth Bader Ginsburg also said the court should have let the man’s case continue.
No other judge joined Thomas on Monday in opposing the court’s decision not to take Doe’s case.
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