Opinion | Congress Should End a ‘Harsh and Unfair’ Rule That Blocks Troops From Court

The Supreme Court justices Clarence Thomas and Ruth Bader Ginsburg don’t agree on much. On Monday, however, they both dissented from their colleagues’ decision to deny review of Daniel v. United States, in which Walter Daniel, whose wife, Rebekah Daniel, died four hours after giving birth to their daughter, had brought a suit for medical malpractice and wrongful death. He claimed that his wife’s death resulted from the negligence of the medical staff.

In any other context, this case would hardly attract the Supreme Court’s attention. But Mr. Daniel’s wife was a lieutenant in the United States Navy and was treated at a military hospital, and so his suit on her behalf was foreclosed by the Supreme Court’s 1950 decision in Feres v. United States. That unanimous decision bars any and all lawsuits brought by service members against the federal government for injuries that “arise out of or are in the course of activity incident to” their military service.

For the second time in six years, Justice Thomas wrote separately on Monday to urge his colleagues to revisit Feres. But the real audience for Justice Thomas’s concern shouldn’t be his colleagues; it should be Congress, which has tolerated this harsh and unfair rule for far too long. Lawmakers should demonstrate what it means to actually support the troops, rather than just revere them, by relegating Feres to the dustbin.

For almost as long as it has been on the books, the Feres decision has been controversial. The case reached the Supreme Court in 1950, four years after Congress broadly expanded the tort liability of the federal government in the Federal Tort Claims Act and shortly after the United States had entered the Korean War. Although Congress had expressly disallowed claims from anyone arising out of the military’s “combatant activities,” the Supreme Court in Feres went further. It held that Congress could not have intended that service members could bring ordinary tort suits for any other claims arising out of their military service, even though nothing in the law directly supported that result.