To curb military sexual assault, Biden needs help from Clarence Thomas

President Biden’s attempt to overhaul the military justice system has already won a key battle. But he will need help from Justice Clarence Thomas to win the war. 

Last Thursday, the military officially implemented the Biden administration’s overhaul of the Uniform Code of Military Justice, transforming how the military handles sexual assault, rape, and murder cases. The sweeping change, which strips commanders of their authority over sexual assault and related crimes, follows years of advocacy and was met with bipartisan support. Whereas prosecutorial decisions about most military crimes are made by the chain of command, sexual assault cases will now be handled through an independent system. 

The announcement marks the latest in a series of updates to servicemembers’ rights through the National Defense Authorization Act. In 2019, the same annual law afforded servicemembers with an administrative process to recover for medical malpractice.  

Despite providing recourse for servicemembers who are injured by military health providers, though, the updated law stopped short of granting them the same rights as their civilian counterparts. To this day, servicemembers cannot file a lawsuit as victims of medical malpractice because of a 1950s Supreme Court precedent known colloquially as the Feres Doctrine. Without an update, Biden’s attempt to protect victims of gender-based violence may meet the same fate.

The Feres Doctrine creates a significant exception to the Federal Tort Claims Act, which makes the federal government amenable to certain torts claims by U.S. citizens. Its namesake case consolidated several lawsuits by servicemembers: One alleged that negligent barracks maintenance had caused a fatal fire; one involved untimely death because of unskillful surgery; and one sought damages after a 30-inch towel marked “Medical Department U.S. Army” was found in his abdomen.  

Despite the seemingly clear-cut nature of the claims in Feres (which would likely be successful lawsuits for civilian plaintiffs), the Supreme Court concluded that the government could not be sued under the the Federal Tort Claims Act for “injuries incurred incident to service.” The medical malpractice claims and fire hazard alike were, according to the court, just part of the job.  

Since 1950, courts have upheld the Feres doctrine and extended it to new types of cases. Notably, it was expanded to the mishandling of military sexual assault cases as recently as 2021 by a federal circuit court.  

When the plaintiff in that case, a former West Point cadet, petitioned the Supreme Court to hear her case, she was met with resistance by the Justice Department. So the Biden administration, despite reforming the rules for sexual assault-related crimes, opposed a servicemember’s right to challenge the government when her sexual assault case was mishandled. This effectively renders rape “incident to service.” 

The Supreme Court declined to hear that case, but one justice dissented from that decision: Thomas.

Thomas argued that the Feres Doctrine was not only wrong, but had absurd results — if the petitioner had been a civilian contractor in the same circumstances, her rights could be vindicated. Instead, because of the problematic precedent, she had no recourse.  

Here, we see where Justice Thomas’s approach to “stare decisis” — or adherence to the court’s past decisions — can be beneficial to the Biden administration’s goals. Because the Feres precedent is “demonstrably wrong,” an example of judicial overstep that lawmakers must correct through long, arduous processes, it warrants upheaval under Thomas’s legal philosophy.

In 2021, he could not get the requisite four votes to needed for the court to overturn Feres. But now that lawmakers have shown a consistent interest in modifying the Feres doctrine’s limitations, it may be time for the justices to listen to Thomas and scale back its legislative venture. 

If Biden has a vested interest in curbing military sexual assault, then servicemembers must be able to sue when the new system fails. For that to happen, the Feres Doctrine must be reevaluated, and the court must reassess a 70 year-old precedent — something right in Thomas’s wheelhouse. 

Chandler Cole is a retired Army captain, a West Point graduate and currently a student at Duke University School of Law.