Below is my column in The Hill on the Supreme Court’s rejection of the case of a former West Point cadet who was barred from suing over the handling of her alleged rape. The case would have allowed a reconsideration of the Feres Doctrine, one of the most damaging and pernicious doctrines ever created by the Supreme Court.
Here is the column:
The often-divided Supreme Court reached an almost unanimous decision on Monday. It was the wrong decision.
The court refused to review the case of a rape victim who was barred from having her case heard in federal courts because “Jane Doe” was serving in our military. Only one justice demanded justice for the former West Point cadet: Clarence Thomas.
The injustice of the court’s decision, however, goes beyond “Jane Doe” and extends to every member of the military.
The court missed the opportunity to overturn one of its most infamous, indefensible doctrines. Created more than 70 years ago, the Feres Doctrine has victimized hundreds of thousands of service members and their families. The court’s failure should now put pressure on Congress to finally act to end the tragic legacy of the Feres decision.
I have been a vocal critic of Feres for decades and wrote a three-part study of the military legal system 20 years ago that detailed how this doctrine began in 1950 with a clearly erroneous reading of the Federal Tort Claims Act (FTCA). The doctrine is named after Army Lt. Rudolph Feres, who died in a fire allegedly caused by an unsafe heating system in his New York barracks. It was one of three cases combined for review by the court, including a soldier who sued after an Army doctor left a 30-by-18-inch towel (marked as “Medical Department U.S. Army” property) inside him.
These should have been easy cases of breathtaking negligence. The FTCA only bars lawsuits against the military for “combat-related” injuries — a logical and clear exception. However, the court set out to create a sweeping new immunity for the military and declared that any lawsuit by military personnel would be considered “combat related.” It was entirely nonsensical since there would be no reason to refer to combat if Congress wanted to grant total immunity for the military. Indeed, the late Justice Antonin Scalia denounced the doctrine as raw judicial activism. He was joined in his condemnation from the left by the late Justice John Paul Stevens.
The West Point case shows the legal lunacy and lethality of this doctrine. Jane Doe was a cadet who was allegedly raped by a fellow cadet and, according to court documents, came forward to bring charges. However, West Point failed to follow military regulation and she later dropped out of the academy. The district court and the Second Circuit then dismissed her lawsuit as “incident to service” and thus barred under the Feres Doctrine.
Those lower courts can be excused for dismissing the case. After all, this is a controlling Supreme Court precedent. But the Supreme Court itself has no such excuse.
The former cadet is not alone when it comes to negligence in handling criminal cases. In Illinois, eight women sued the Army for “harassment and retaliation, including rape, sodomy, unwelcome sexual advances and touching, requests for sexual favors, sexual innuendos, harassing phone calls, threats of physical harm, non-consensual sex and duress.” A federal court dismissed their lawsuit under Feres.
My study found an array of such cases. For example, soldier Julius Pringle was severely injured at a bar on a military reservation in Kansas that served both civilians and military personnel; a gang had effectively taken over the bar. After Pringle exchanged words with members of the gang who were harassing his girlfriend, bar managers had him thrown outside into the midst of waiting gang members. He was beaten so severely that he suffered brain damage. Yet, he was barred from suing.
I found many deaths caused by contractors who failed the most basic obligations in maintaining or using equipment, along with negligent acts that were long addressed in civilian businesses and deterred through civil liability. For example, Lt. Joseph McConnell was killed while waterskiing after a boat rented in Arizona from an Air Force recreation center surged out of control because of a mechanical failure and hit him.
In the area of medical malpractice, the study found practices and conduct that would be considered primeval in modern torts cases. When civilian doctors leave a patient paralyzed or crippled for a lifetime of care, family members often receive millions in compensation. In the military, families receive a couple thousand dollars a month and more military medical care. Take Dorothy Meagher, who found herself caring for her son after he entered a Navy hospital to have a cyst removed; due to an alleged overdose of anesthetics and the failure of a Navy doctor to call immediately for assistance, her son was left a quadriplegic.
Tort liability does not simply make victims whole but encourages others to take precautions. Yet, military families are left with a fraction of the financial help afforded to civilians and there is less incentive to bring equipment and practices up to modern standards.
As Justice Thomas correctly noted, the Feres Doctrine results in absurd results: “If two Pentagon employees — one civilian and one a service member — 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 said it is time to end the “judicial legislating” and “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.” Indeed, it is a farewell that is 70 years overdue.
There is one other body that can do justice for military personnel: Congress. For 30 years, I have called on Congress to correct this judicial error. It needs to state expressly what already should be obvious in the FTCA: Military personnel have the same access to the courts except for injuries related to actual wartime or combat operations. Politicians are keen to use military personnel as props at Veteran’s Day and Memorial Day events. However, they have left them fodder for negligent military and contractor operations.
It is time for Congress to act and to put an end to the Feres Doctrine.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
62 thoughts on “The Supreme Court Fails To End The Feres Doctrine . . . Now It Is Up To Congress”
Let’s put a Face and horrible story of exactly what is wrong with the Feres Doctrine and the Supreme Courts gross failure to see that equal justice is a core principle of our Legal System shall we?
Read up on the case I have linked….go look at the photos of this brave Woman’s horrible burns and read how the US Army evaded their DUTY.
These are not abstract issues….these are real people….people who pledge their very Lives to serve our Nation.
They deserve better…much better.
We owe them…everyone of us.
Ralph, there is no question that what you say is true.
My question is whether this is in the Supreme Court’s venue or Congress’s. Both have some degree of responsibility but since laws are created by Congress and the case has been so botched up it would be more efficacious for Congress to write whatever law is necessary.
The Feres Doctrine is no different from Qualified immunity. BOTH are examples of Judicial Legislation and both are unconstitutional and WRONG.
The courts never should have concocted either.
The courts are OBLIGATED to correct BOTH.
Congress did not make either problem.
But it MIGHT be inside congresses power to correct them.
Even that is arguable – as when the court does not follow the language of the law or constitution – why are they to be expected to follow the language of the new law ?
“The Feres Doctrine is no different from Qualified immunity. BOTH are examples of Judicial Legislation and both are unconstitutional and WRONG.”
John, in the very broad sense you are correct but in the narrower and more applicable sense, I believe they are quite different and need to be treated differently even if the same laws apply.
Sometimes there are reasons for laws. Sometimes the best reason for a law is to reduce transaction costs. If it costs $10,000,000 to maintain your guaranteed freedom, and you earn $30,000 then your freedom is not guaranteed by the Constitution or the prevailing laws. Such transaction costs work in both directions. You might not feel certain laws should ever be enacted based on an ideological basis (I need more knowledge of all the different costs before I make such a decision), but sometimes things like transactional costs make those things a must. Without them, things can come to a full stop.
The difference between QI and Feres is that Feres has the very tiniest of a legislative hook.
QI has no basis in the law or constitution, and frankly is unconstitutional.
Feres is an overly broad interpretation of an actual law.
The one is made of whole cloth the other is a cloth made from a single thread in the law.
Both are errors of the court.
John, once again we are at odds. QI and Feres are similar in the broad sense but in the narrow sense they are quite different and will not be accepted as the same.
Though quite libertarian myself, I am more pragmatic than you as are a lot of known classical liberal / libertarians. Transaction costs are a consideration in life. Go to one of Tom Sowell’s books that deals with transaction costs
This has nothing to do with transaction costs, and little to do with libertarianism.
We are discussing something more fundimental – the rule of law.
QI and Feres have minscule differences.
Both were court created faux law.
Both COULD have been created legitimately by the legislature.
In Feres the court essentially read one word in a law so broadly that the law became something far different than written.
With QI the courts created something that does not exist in law.
I am not a freind to most legislation. But QI and Feres are NOT legislative errors. They are errors of the court.
They are FUNDIMENTAL errors.
I will support attempting to fix them through legislation – but that does not correct the REAL problem in these instances.
And that is the overreach of the courts.
In fact if the court so chooses – they can ignore any legislative effort to fix Feres or eliminate QI.
If the court can read combat infinitely broadly once – it can read anything the legislature passes broadly.
If the court can create QI from thin air once, it can do so again.
The rule of law requires the courts to Read the law and constitution NARROWLY with respect to government powers.
Otherwise government powers can quickly become power over everything.
This is not about libertarian ideology.
As to pragmatism – I have no problem with pragmatism, but in this case it does not address the underlying problem.
QI and Feres are small problems compared to the deconstruction of the rule of law.
Your pragmatic approach does not address that at all.
Laws are passed to reduce transaction costs all the time. Whether or not you wish to include libertarianism in such actions is your choice, but if pragmatism doesn’t sometimes replace the pure libertarian ideology things will ultimately not work. The idea behind the libertarian ideology should be to move the nation in that direction NOT to have an ideology that just sits there and does nothing except say no.
QI and Feres have little difference in your mind. That is fine. I find whatever difference exists is big enough to keep them separated.
“Sometimes there are reasons for laws”.
Certainly. but that is not honestly the business of the courts.
The courts are not there to decide the reasons for a law.
They are there to read the law AS WRITTEN and decide whether it is constitutional or in conflict with other laws.
They are not there to decide if it is good law or bad law.
Only constitutional law or not.
“The courts are not there to decide the reasons for a law.
They are there to read the law AS WRITTEN and decide whether it is constitutional or in conflict with other laws.”
John, that is why I suggest having the legislature rewrite the law rather than the Supreme Court fixing it.
How does the legislature rewriting a law fix anything if the law was written well in the first place ?
When the court reads law and government powers broadly – the legislature can only fix that – if the court chooses to return to narrowly reading the law.
The language of the original law regarding military liability was fine.
As I have said before – what do you want of congress a law that says “combat” really means “combat” ?
I strongly suspect that legislation that ended QI and narrowed Feres would in the narrowest sense work.
Meaning it would correct the Feres and QI problem – but only because the court would heed the message, and quietly comply in THIS and only THIS instance.
But lets look at another similar instance. SCOTUS under FDR read the entire contracts clause out of the constitution – nor is that the only instance in which portions of the constitution that limit government powers have been read out of existance by SCOTUS.
The 9th and 10th amendments have no meaning at all. Yet when written they were considered very important.
Congress can not fix SCOTUS’s failure to read the constitution as written.
But it is still a large failure of the rule of law.
It could take centuries to get the contracts clause back – if ever – because that would make 2/3 of federal and state government today unconstitutional.
“How does the legislature rewriting a law fix anything if the law was written well in the first place ?”
I think a rewritten law to end abuses by the court is more than enough, but if it isn’t then the court can do what they will with any law already existing or changed. But, there is also the enforcement of the law and how enforcement can be included with the law.
There isn’t a problem as much with the judiciary as there is with the legislature. The legislature has ceded powers to the executive and judicial branches to protect its individual members in future elections. This problem would not exist if our legislatures lived up to their duties.
Unfortunately, we have a large segment of the population that believes the Constitution can be changed like a roll of toilet paper. If the country ends up with too many of them then we will no longer be a Constitutional Republic. At present in this administration iit appears that the Constitution has been abandoned and we are living under an elite oligarchy that appears to be more and more fascist with time. Some that look for winning an argument rather than look at the law and its results are in for a rude shock should the trend continue. They might be too old to face the consequences but their children and grandchildren will.
That is why I consider these leftists the most selfish people as they only care for themselves and protecting their arrogant egos.
Don’t tell me who I owe. The Military might owe that woman something but I don’t, and I don’t appreciate others people telling me I do. Next you’ll be telling me I owe reparations to black people.
“The Supreme Court Fails…”
– Professor Turley
The singular American failure IS the Supreme Court.
The remainder of the judicial branch is a co-conspirator.
Justices and judges are sworn to support the “manifest tenor” * of the Constitution and Bill of Rights. Instead, they support the principles of the Communist Manifesto. Karl Marx wrote the Communist Manifesto 59 years after the adoption of the Constitution because none of the principles of the Communist Manifesto were in the Constitution. Had the principles of the Communist Manifesto been in the Constitution, Karl Marx would have had no reason to write the Communist Manifesto. The principles of the Communist Manifesto were not in the Constitution then and the principles of the Communist Manifesto are not in the Constitution now.
The judicial branch, with emphasis on the Supreme Court, is and has been the singular American failure since 1860, the date of abrogation, nullification and expiration of the Constitution and Bill of Rights. The fundamental law, the Constitution, must have been upheld and defended despite any and all other considerations, including the abrupt termination of slavery and “preservation” of the “Union.” Abraham Lincoln’s denial of the right of secession, prosecution of a war of aggression against a sovereign foreign nation, suspension of Habeas Corpus, confiscation of private property, unconstitutional immigration en masse of illegal alien Africans, etc., must have been immediately struck down by the Supreme Court. Slavery was its own rationale for termination; abolition of slavery was self-evident – free market tools for that purpose were available for all to employ, and states which seceded would have returned to the fold of necessity and in good time.
Subsequent to Lincoln’s egregious and unconstitutional “Reign of Terror,” the entire, unconstitutional, totalitarian, American welfare state should have been struck down immediately by the Supreme Court, from the Progressive income tax, Federal Reserve Board, IRS, etc., through FDR’s redistribution programs and the Great Society’s War on Poverty, all the way up to the dereliction of the executive branch to dutifully secure the border, Mexican invasion immigration, Obamacare, HAMP, HARP, “Stimulus” redistribution, dollar printing, Quantitative Easing, etc.
Incredibly, the very U.S. Supreme Court itself is woefully incapable of grasping the scope and breadth of American freedom, wherein, government exists to provide maximal freedom to individuals while government itself is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure.
“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“men…[will]…do…what their powers do not authorize, [and] what they forbid.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Yawn,.. way to be lazy and not think for yourself.
Monument: “A secondary reason is that they abused him terribly during his confirmation hearing (yes, Biden), and won’t admit their mistake.”
When will you Trumpists admit that you were mistaken about the election being stolen?
When will you Trumpists admit that you were mistaken about the election being stolen?
When the independent audits are completed. Surely you wouldn’t object to proving Trump and his base have been wrong all along.
Fair enough. But I’m guessing that Trumpists will never admit that they were mistaken unless at the point of a gun.
But I’m guessing that Trumpists will never admit that they were mistaken unless at the point of a gun.
Well, they do have a solid 5 year history of being proven correct regarding the litany of allegations against President Trump. Don’t be surprised if some won’t trust the outcome of an audit. Perhaps just a metaphor, but don’t expect the point of a gun will change the hearts and minds of people that are prepared to defend their natural rights.
Natural rights? You mean god given? You don’t strike me as someone who believes in the superstitions of Bronze Age men.
We don’t need no stinking rights. The question is what rights does the *government* have to control our lives? We the people grant such rights to the government by our mutual consent for the common good.
For instance, the Fifth Amendment does not grant us the right to remain silent. We remain silent by refusing to speak. The Amendment prohibits the government from forcing us to talk. In the old days, governments often resorted to torture in order to get confessions. How does a civilized society prevent government torture? By prohibiting the police to continue to question a suspect once they state that they don’t want to talk (or request a lawyer). It would be impossible to pass a law prohibiting torture per se because the definition of what constitutes torture would invite abuses. Instead, the safest course of action is to prohibit ANY interrogation once the suspect chooses to remain silent. This guarantees no torture can occur.
So this Amendment does not grant me the “right” to keep my mouth shut; it prohibits the government to force it open.
Natural rights? You mean god given?
I said natural, as in humans have them merely because they exist. One’s belief in how humans came into existence is up to the individual conscience, and the 1st natural right the framers fought to secure.
We don’t need no stinking rights.
Breaking News! Natural rights are unalienable. This means you have them whether you want them or not. Now the security of those rights is the fundamental purpose for any legitimate government.
We the people grant such rights to the government by our mutual consent for the common good.
We give government constitutionally-limited powers for one self-evident truth:
that to secure these rights, governments are instituted among men, deriving their just powers by the consent of the governed.
These are individual rights that are to be secured, not collective rights. A just government is one that provides that security by staying within their designated limits, which in turn is for the common good.
Olly, we may be arriving at the same conclusion albeit by different rationales. I know the Bill of Rights implies that rights are granted to us, but those amendments actually function to limit governmental power. I don’t need to be granted a right to speak freely anymore than I need to be given a right to breath. I breath because I can (unless government decides to execute me for a capital crime). And I speak because I am able unless the government can constitutionally censor me. The Framers believed in a supernatural being because they were ignorant of modern cosmology and evolution. Had they known then what we now know about the Big Bang and Darwinism, they would not have had to rely on the divine to explain their existence. As an atheist, I do not believe in natural law or natural rights.
The Framers believed in a supernatural being because they were ignorant of modern cosmology and evolution. Had they known then what we now know about the Big Bang and Darwinism, they would not have had to rely on the divine to explain their existence. As an atheist, I do not believe in natural law or natural rights.
The Framers were certainly knowledgeable of Aquinas’ First Cause argument, which came before the Big Bang theory. Most importantly, regardless of how any of them believed humans came into existence, they firmly believed they were created with unalienable rights. They didn’t need a divine being to explain these rights. Rights that preexist any form of government. Interestingly, you provided a couple of examples of those rights that are yours naturally. If you remove government from the equation, you’d still have these rights. If you remove government from the equation, you’re in the state of nature. What you’ve described are natural rights. My theism, or your atheism, does not change the fact you and I exist. As a result, we have rights by our very nature of existence.
So I would agree that we’ve arrived at the same conclusion on unalienable rights. Your rationale however seems to be an equal defense of your atheism. That’s not even necessary, if you believe in the right of conscience. It requires no defense. Just own it and respect others right to believe in God.
Olly, you provided an excellent way for Jeff to think forward in the future. If I were asked if 1) God provided my natural rights or 2) a King provided my natural rights, I would choose #1, God. If a King gave us our natural rights a King could take them away. If God gave them, then no man could take those rights away. Whether God exists or not, in my mind, never needs to be questioned because no one can provide certainty in their proof.
Science proves all sorts of things but when we go back to the Big Bang one has to ask themselves what preceded that? There is no answer to that never-ending question. If one presumes God is the answer then one questions what preceded God? These are unanswerable questions. However, when I look at the Old Testament (preceding a lot of things that happened afterward) and try to see what it says, it helps define a way of life, based on the time it was created. I am amazed at the knowledge in the Bible, and that so many things are pertinent to today’s way of life.
I don’t have to be Christian, Jewish, or any religion (I mentioned nothing of the eastern religions which provide some similar types of knowledge) to recognize that the belief in God or religion has greatly helped in the development of mankind.
Many would like to deny religion and its accomplishments because of the many bad things that occurred during the years. Those bad things do not extinguish the benefits. The deniers, not the agnostics or those that choose not to believe (atheists), too frequently think they are better than others, or that everyone should follow their beliefs. Many of them have accepted leftism as their faith-based religion and with that religion wish to tear down many of the concepts passed over generations, via religion, leaving the human spirit worse off than it was as a caveman.
Anonymous the Stupid, you are focussing in on animals and dogs. In my opinion, you are barking up the wrong tree.
Jeff writes: “The Framers believed in a supernatural being because they were ignorant of modern cosmology and evolution. Had they known then what we now know about the Big Bang and Darwinism, they would not have had to rely on the divine to explain their existence.”
This is pure nonsense. I am not saying that the founders were better off or should have relied on the divine to explain their existence. I don’t delve into such uncharted waters where I will never see an answer not laden with doubt. However, I think religion whether it be belief or philosophy, helped them in their struggles.
Jeff believes that the Big Bang and Darwinism explain everything. Both are theories and theories remain open to question. That is not something Jeff is allowed to do, question. That is what canceling and PC are all about. Jeff wants to draw absolute conclusions before he has even gathered all the points in the question.
I would like to know why anyone would think that ” the Big Bang and Darwinism explain everything.” The finest brains of the world would not make such a statement. Why Jeff made it is clear. Jeff requires certainty to exist in an uncertain world.
This post is to Olly, not to Jeff. I am sending it to a person who recognizes the insecurity of one’s knowledge knowing that when making such decisions we are playing an odds game where 100% certainty doesn’t exist. Jeff already knows everything so there is no doubt in his mind that he can be wrong. That is the mindset of one who knows very little.
Marxists want you to get in a debate about the eternal question of whether God exists. In their stunted understanding, if they can convince people to abandon God, then they believe that undermines the very foundation of western civilization. In their mind, if God doesn’t exist, then they can replace God with the state. In their mind, God doesn’t exist, therefore any rights the people have must come from the state. This is an example of them always in attack mode. They risk nothing if they don’t succeed. What they cannot ever explain away is the rights we have by nature. No matter what one believes is the source of their existence, these rights exist.
Take for instance the individual alone in nature. They have the natural right of conscience. They have the natural right of self-defense. They have the natural right to property and so on. It’s the security of these rights that is the challenge. Natural forces put those at risk. Now add in other humans, who have those same rights equally. That is another potential force putting our natural rights at risk. But over time they learned that if they worked together, they have more security of those rights. Then we get more civil societies. But human nature being what it is, we get the evil that abuses power. We still have that today. And the Marxists are doing everything they can to undermine the very form of civil society that has produced the most security of our natural rights. Of course in the arc of human history, our nation is just getting started.
So I would say, don’t get distracted by the Marxist’s attack on God and religion. That answer will reveal itself to everyone anyway. Instead, continue attacking their evil ideology. That is the best defense.
In the locations where Marx existed, there was the idea of one God and only one God. If one is creating a faith-based religion one has to get rid of God before replacing him.
Marx was a very intelligent man who came up with a lot of fallacious ideas. Many of his followers of today don’t even know what his theory was. Even some of the experts on Marx fail in their understanding of the man and his theory.
“So I would say, don’t get distracted by the Marxist’s attack on God and religion.”
The value of watching for such an attack is an early warning signal that one might be facing an ignorant leftist.
Olly:”In their stunted understanding, if they can convince people to abandon God, then they believe that undermines the very foundation of western civilization. In their mind, if God doesn’t exist, then they can replace God with the state. In their mind, God doesn’t exist, therefore any rights the people have must come from the state.”
Does it make me a Marxist because I choose not to believe in the god delusion? All atheists are Marxists? Rational humans don’t believe “x” because one cannot prove “not x.” I fly on an airplane because I have every reason to believe it will fly, not because I cannot prove it won’t. There is no scientific basis to believe in god and every scientific reason to disbelieve it. Physics may soon enough explain existence itself- they are hard at work at it!
Even if the benefits of religion belief outweigh its persecutions, I could no sooner believe in god than I could believe in Santa Claus. It’s just that simple. The great majority of Trumpists are religious. That they are so gullible to believe in the supernatural does not surprise me in the least that they can swallow Trump’s lies. After all, Trumpists are proud to admit that they are low information voters, for they abhor the idea of gaining a higher education at an elite liberal arts college. I understand that my statements are not politically correct, but fortunately Conservatives eschew political correctness!
You believe that without god, there can be no human rights. Suppose the Declaration of Independence dispensed with the notion of a creator and just relied upon the fact:
We hold these truths to be self-evident, that all men are created equal that they are endowed … with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
These self-evident truths in the minds of rational men would not have sufficed to establish a government? I believe that man created god, not the other way around, and thus I place more faith in mankind than do you.
For some reason, you seem to believe you need to explain your atheism to me. I couldn’t possibly care less.
I believe that man created god, not the other way around, and thus I place more faith in mankind than do you.
Then I’ve successfully conveyed my position
Jeff, that statement has been proven wrong many times on this blog. You should really check things out before replying.
I deal with loads of ‘Trumpists’. I don’t think I have ever met one that hasn’t said Trump or themselves have made mistakes.
You communists (liberals, progressives, socialists, democrats, RINOs) began stealing elections when you dumped illegal aliens, en masse, on America in 1863 and you have persisted in election theft ever since. Did you notice, turnout in 1788 was 11.6% by design? Never were the masses and the “poor” intended by the Founders to vote in Ben Franklin’s restricted-vote “republic,” distinctly not a one man, one vote democrazy, which is doomed from the outset; inexorably bound for failure, once the “great beast” discovers that its paws are on the U.S.Treasury and it can spend every last cent at will.
I agree that the Feres Doctrine was a misinterpretation of the law.
There does need to be some protection from lawsuits for military training and operations. But clearly the Feres Doctrine went too far.
I knew someone who underwent POW training in the Army. The training alone would have generated massive lawsuits had there been no immunity. They had to be “captured” and undergo mental torture and quite a bit of physical discomfort, including getting nailed inside a cramped wooden box and left there all day. It got to the point that some of them lost touch with reality and really began to believe they were POWs. Freak out and fail the class. The description of the training alone brought home what our military face in real life if they are captured. They also have survival and escape training.
The military will put you in physical and mental harm. It will change you. That’s the nature of the service. The military can’t be sued for putting you through hell.
But it should be able to be sued for the examples of negligence not related to combat mentioned by Turley above. My own family experienced some significant malpractice with military medical care.
Karen, why are we asking the Supreme Court to fix a problem they helped create? Isn’t this the job of Congress?
“Ours is not to wonder why. Ours is just to do or die.”
– Lord Tennyson Alfred
An interesting juxtaposition in military actuality:
Jane Doe was allegedly raped.
“Approximately 70,000 U.S. Marines and 18,000 Japanese soldiers took part in the battle. In thirty-six days of fighting on the island, nearly 7,000 U.S. Marines were killed. Another 20,000 were wounded. Marines captured 216 Japanese soldiers; the rest were killed in action.”
– The National WWII Museum
Glad to be able to agree with JT on occasion, and this is one of them.
I’ll write my members of Congress and add my voice to yours.
How can a leftie have good intentions when their primary creed is anti Constitutional? As far as ‘this is not a democracy this is a dictatorship’ goes there is no democracy read The Constitution. The Congress makes all laws for the use of the military Congress is the source of the problem by law. Not The Court. Point three never look to the left if you are in the military, the combat arms especially. The leftists are very anti military and go out of their way to create wars and conflicts that kill and maim far more US Citizen soldiers than any other reason during their tenure in office under control of the Government. That’s not counting what they allow to happen under their terms in office More wars, more dead and less regard for the troops than any other source BUT that being true how did the military ever decide to support the far left? Answer. They didn’t because it is a dictatorship of sorts and also because soldiers up hold their oath of office EXCEPT in this last case with Biden running when they supported turning traitor and only one dared to uphold their oath office. Are they cowed that much they put our Constitution in mortal danger in favor of what. A yellow beret?
As far as ‘this is not a democracy this is a dictatorship’ goes there is no democracy read The Constitution.
Within the military, this phrase was regarding having no rights, as a service member, to vote on policies, procedures or representation.
I was thinking about re-enlisting for Cobra helicopter gunship pilot MOS.
Had a chat with a helicopter pilot during a field training exercise at Ft. Bragg. He was drunk after gambling & playing cards in the officers tent. He said the training was brutal. During a military inspection, officers found lint on his display. The officers dragged his wall locker to a staircase & pushed it down 3 flights of stairs, assigned him to mess hall KP & set a time limit to 1 hour to have everything fixed….Or else.
Clarence is the best one on the bench. He wasn’t born there but he is “A man from Missouri”.
Sounds reasonable to me, Turley.
A commonly used phrase in the military was that this was not a democracy but a dictatorship. Young men and women volunteer, they go through weeks of intense “reeducation” in boot camp and then they are sent off to work 12-18 hour days under extreme working conditions, oftentimes away from family and friends for weeks and months at a time. The technical training they receive is superb, but the compensation is well below that of civilians with the same skillset. I’ve known many that completed their enlistment on a Friday, only to show up on Monday as a civilian, to do exactly the same job with twice the pay, no duty days and no deployments. Another common phrase was that you can’t sue the Navy. I never considered the civilian contractor that would be working next to me during a major shipyard overhaul, would have the benefit of a legal system to protect his or her rights and I wouldn’t. Clearly that’s two systems of justice. How does that not violate Article 1 of the 14th amendment?
” How does that not violate Article 1 of the 14th amendment?”
Article 1 of the 14th states: “Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
This seems to dictate to the State: “No State shall…”
We have military law and civilian law.
Olly, I am not taking a position on this question because it is not an all or non issue and the points involved are more complex than they appear. It seems like this is something that demands legislation, not Supreme Court decisions. The Feres doctrine clearly has a lot of faults but the SC decided the case and in subsequent cases seems to have made things worse, at least from your perspective.
SCOTUS did create the Fere’s doctrine and thus the problem.
It is irrelevant whether the constitutional standards are the same within the military.
The law said “COMBAT”. The courts read “combat” out of the law, or read it so broadly as to have no meaning.
Could congress have constitutionally written law as egregious as the Feres doctrine – maybe.
But they did not.
This is a failure of the court.
Maybe it can be corrected by the legislature.
Though I would ask How ?
If the court read “combat” as meaning much more than combat in the past and continues to do so, then why cant they read anything new congress passes however they please ?
What is the legislature to do ?
Pass a law that says “we really meant it when we said “combat”” ?
This is why it is critical that courts read laws narrowly and rights broadly ALWAYS.
Legislatures can expand laws,.
How do you narrow a broad reading of the law ?
John, laws are created by the legislature. When interpreted by the courts the courts can make the laws better or worse. I don’t claim to have any special knowledge of this problem but based on what I have read here and elsewhere it appears that in successive SC cases the SC made things worse.
If this thing is so messed up then all the applicable laws should be rewritten. You seem to want the SC to fix the laws that seem to have been tampered with enough. Remember ObamaCare? That case either should have struck out a portion of the law or the entire law and sent it back to Congress. Instead, the SC did what was never intended to do. That is because we have come to rely on the SC to legislate and now you are asking for more?
“John, laws are created by the legislature. When interpreted by the courts the courts can make the laws better or worse. ”
Courts are not there to make them better or worse. They are not there to “interpret” except in the narrowest sense, that they serve as the final word short of revolution on the meaning of law. they are there to:
Protect the rights of individuals from unconstitutional infringement by government,
to resolve conflicts between laws, or laws and the constitution – again in the narrowest possible way.
They are not there to make good laws bad, or bad laws better.
“I don’t claim to have any special knowledge of this problem but based on what I have read here and elsewhere it appears that in successive SC cases the SC made things worse.”
Even the first was wrong – just as qualified immunity is wrong.
Both are creations of the courts, not found in law or constitution and as such they are WRONG.
“If this thing is so messed up then all the applicable laws should be rewritten.”
We see this constantly and it is WRONG.
The courts do it, legislatures do it, congress does it.
Laws against assault are not enforced when the victims are gay, or wives or ….
So we pass knew laws – hate crime laws, violence against women laws.
But assaulting people was always WRONG. What does passing a new law do ? Say we really really mean it this time ?
If ordinary law is not being enforced FIX THAT.
The law that the court expanded into the Feres doctrine said you can not sue the government for injuries in combat.
That is perfectly reasonable. And even if it was not – that is congress domain. Had congress meant no one in the military can sure the government – they could have passed that law. But they did not.
This is the perfect example of the error of broadly interpretting. Had congress said you can not sue the military – OK, that is the law, and we know who to blame, and how to fix it.
How do you fix the Feres doctrine ? With a new law by congress that says – you can not sue for combat injuries – and we “”really really mean it” ? Regardless, if SCOTUS can “interpret” Combat to mean anything having to do with the military once, then why not twice ? And why can’t they “interpret” any law that broadly – making house into anywhere a person might be, and navigable waters into puddles that dry up when the sun shines ?
This like Qualified immunity is a mistake of the courts and it is the obligation of the courts to fix it.
While the legislature MIGHT make a dent – the real problem is that the COURTS must own that they made a mistake broadening the law and they must admit the mistake and vow to “sin no more”.
In point of fact – the legislature CAN NOT fix this. They can pass a new law – but the courts are still free to broadly interpret the new law.
They likely won’t – a message has been sent. But it is a tiny message. and not the right one.
Further legislatures do CONSTANTLY make mistakes and pass overly broad laws. THOSE the courts should strike down returning the law to the legislature to be fixed.
The legislature should fix its mistakes, the courts should fix theirs.
The rule of law requires that.
“You seem to want the SC to fix the laws that seem to have been tampered with enough.”
No I want the SC to fix its own mistake.
“Remember ObamaCare? That case either should have struck out a portion of the law or the entire law and sent it back to Congress.”
Correct, it is not the role of the courts to decide if a law is good law or bad law, only if it is constitutional and then to read that law NARROWLY.
“Instead, the SC did what was never intended to do. That is because we have come to rely on the SC to legislate and now you are asking for more?”
It was the SC’s role to return PPACA to congress – which could fix the problems or not.
It is the SC’s problems to fix the Feres doctrine – as the SC created that doctrine from thin air – not congress.
The SC should not EVER be creating doctrine from thin air.
It should NEVER be reading laws broadly NEVER.
No matter whose political ox gets gored, individual rights are to be understood broadly, and government powers and laws narrowly.
Nothing else works.
While I favor limited government – this is NOT about limited government. The constitution can be amended to grant government more power if that is what people want. Laws can be written that explicitly give government powers.
I do not like that. I would oppose that. But it is still consistent with “the rule of law”.
Broad reading of laws, and narrow reading of rights is NOT.
It is a system that MUST result in conflict, chaos and tyrany. It also MUST result in the rule of man, not the rule of law.
“They [SC] are not there to make good laws bad, or bad laws better.”
John, that is why from what I know it is best for the legislature to write new laws. I wouldn’t try thinking about qualified immunity if one is considering new legislation to correct the problem. It’s not appropriate and will make a needed law harder to write, pass and live with.
“”They [SC] are not there to make good laws bad, or bad laws better.”
John, that is why from what I know it is best for the legislature to write new laws. I wouldn’t try thinking about qualified immunity if one is considering new legislation to correct the problem. It’s not appropriate and will make a needed law harder to write, pass and live with.”
You are missing the point.
While we have many problems, QI and Feres are NOT problems caused by legislation. They are problems caused by court made law, which the courts should not do. Attempting to fix them by legislation is a sysiphean task. While It MIGHT work in this specific instance,
It does not address the real problem, and it litterally might not work at all.
With Feres the courts expanded Combat to mean absolutely anything involving the military – so how is it that congress is to fix that ?
If the court could expand “combat” from the original law, what precludes them from expanding anything that congress drafts ?
And QI was manufactured from thin air. There is no law or constitution underpinning it.
So lets say you pass 2 new laws. The first says – “combat” means “combat”, and the second says government actors do not have qualified immunity.
If the courts continue to broadly interpret the meaning of words – why do you think these laws will work ?
Broad interpretations of law by SCOTUS is NOT a legislatively fixable problem. In fact it is not fixable AT ALL – so long as we allow it.
It is by definition the rule of man, not the rule of law. While it may not in agregate work to advance a specific ideology, it is completely destructive of the rule of law.
This is the core problem you and I address when we say – follow the constitution and the law as written. If you do not like those change them.
That is the ONLY means to have the rule of law. Anything else is inherently chaos to some extent and inherently will result in a variety of forms of corruption.
The role of the courts is not to create policy – as the legislature does. It is actually to constrain policy – to protect individual rights,
The courts are the last and strongest firewall against tyranny – and they have failed.
“You are missing the point.”
No, John, I have the point well under control. We have a checks and balances system so each branch should be checking each other. What you are saying is the courts misinterpreted the law as written and did so on multiple occasions. They are doing as they wish so the legislature can throw out the law and replace it. Packed into the law is how it can be enforced which includes a third branch. I think your fears of a total runaway SC are a bit overblown.
One of our biggest problems is that to protect themselves, not the nation, our legislatures write laws that are not clean.
When you’re right, you’re right
I agree, I do not understand SCOTUS, time and time again, failing to just do their basic duty. And now Harris wants to take all benefits away from our veterans plus close all VA hospitals and spend the money on illegal aliens…the government is a big mess!
Another reminder that Justice Thomas is the best justice.
Lefties primarily hate him because he is honest.
A secondary reason is that they abused him terribly during his confirmation hearing (yes, Biden), and won’t admit their mistake.
Lefties may have good intentions, but their intellectual dishonesty combined with their mob mentality (look how they vote/act in concert), means that they hurt the country.
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