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May 07, 2021

In Dissent, Justice Thomas Argues Against the Feres Doctrine

On May 3, the United States Supreme Court declined to hear oral argument in Doe v. United States, a case in which a former United States Military Academy cadet alleged the government failed to prevent and respond to her rape on campus. The majority relied on the 1950 Feres Doctrine, which states that service members cannot sue the federal government for injuries sustained while serving – including both combat injuries and preventable damage caused by fellow troops or government employees.  Justice Clarence Thomas authored a strong dissent in which he argued the Court should at least take up the case to “clarify the scope of immunity” that has been created, because without statutory text to guide lower courts, they are “understandably confused.” Justice Thomas further contended that the 70-year-old Feres precedent is “demonstrably wrong” and if the Court cannot figure out how to rein it in, then “the better answer is to bid it farewell.”