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U.S. Associate Supreme Court Justices Samuel Alito, Jr., Clarence Thomas and Brett Kavanaugh and U.S. Supreme Court Chief Justice John Roberts look on during inauguration ceremonies in the Rotunda of the U.S. Capitol on January 20, 2025 in Washington, DC, USA. Donald Trump takes office for his second term as the 47th president of the United States. Photo by Chip Somodevilla/POOL/Abaca/Sipa USA (Sipa via AP Images).
A rare division emerged among the conservative justices on the Supreme Court as Justice Clarence Thomas took a stand on Wednesday. He sided with an Army veteran who was left “permanently disabled” following a 2016 suicide bombing by the Taliban at a U.S. military base in Afghanistan.
Justices Clarence Thomas, Neil Gorsuch, Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor agreed that the 4th U.S. Circuit Court of Appeals erred. They disagreed with the court’s decision that federal law “preempted” former Army specialist Winston T. Hencely’s lawsuit against a military contractor in state court for allegedly negligent hiring and supervision of “Taliban operative” and bomber Ahmad Nayeb.
Justice Thomas detailed the harrowing events of November 12, 2016, when Hencely saw Taliban operative Ahmad Nayeb approaching a Veteran’s Day 5K race. As Hencely moved to question Nayeb, the latter detonated his suicide vest, resulting in the death of five individuals and injuring 17 more. Hencely, then only 20, suffered a fractured skull and brain injuries, and the Army later recognized that his actions “likely prevent[ed] a far greater tragedy.”
Although Thomas is typically not known for easing the path to sue the government over civil rights issues, he has been outspoken regarding the Feres Doctrine. This doctrine asserts that the Federal Tort Claims Act’s (FTCA) waiver of federal immunity does not apply to injuries arising out of or related to military service activities.
On Wednesday, Justice Thomas seized the opportunity to make a significant impact, arguing that the “preemption rule” the Fourth Circuit used against Hencely “lacks any foundation in the Constitution, federal statutes, or our precedents.” He emphasized that Nayeb’s actions were “neither ordered nor authorized by the Federal Government.”
“[T]he Constitution’s grant of war powers does not imply that courts must reject any tort claim connected to a war zone, as the Fourth Circuit’s rule requires,” he said. “The assignment of those powers to Congress and the Executive has never been understood to bar all war-related tort suits.”
“To the contrary,” Thomas concluded, “barring other statutory or constitutional considerations, plaintiffs have been able to enforce their legal rights even when they are violated during war.”
Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, then swooped in with a rare break from Thomas.
Alito said the majority essentially gave states a green light to regulate the federal government’s “security arrangements on a military base in an active warzone[.]”
“Under the Constitution, the power to make war and conduct combat operations is entrusted exclusively to Congress and the President. The Constitution expressly excludes the States from this field, and thus no state law, including state tort law, may intrude on the Federal Government’s authority over combat-related operations,” Alito said. “This suit violates that cardinal principle.”
Looking ahead, Alito expressed “concerns” about the implications for trial, predicting the high court’s decision is “likely to implicate the Government’s policy decisions about the operation of Bagram Airfield during the War on Terror.”