In a recent dissent, Justice Clarence Thomas, joined by Justice Neil Gorsuch, has called for the Supreme Court to reconsider the “Feres doctrine,” a longstanding judicial principle that bars members of the military from suing the federal government for injuries sustained in the course of service. Thomas contends that this doctrine lacks a solid foundation in law and has led to unjust outcomes for service members and their families.
The Feres doctrine originates from the 1950 Supreme Court case Feres v. United States, where the Court held that the government is not liable under the Federal Tort Claims Act (FTCA) for injuries to military personnel arising from activities incident to service. This ruling has since been applied to prevent service members from seeking damages for a wide range of injuries, including those resulting from medical malpractice and other forms of negligence.
Justice Thomas has previously expressed skepticism about the Feres doctrine. In a 2025 dissent, he criticized the Court’s refusal to hear a case challenging the doctrine, stating that it “has garnered near-universal criticism; has caused significant confusion; and has deprived servicemembers and their families of redress for serious harms they have suffered during service to this country.” He emphasized the need for the Court to address the inconsistencies and injustices stemming from this doctrine.
Justice Gorsuch has also shown a willingness to question established legal doctrines. In a recent dissent, he accused the Court’s majority of indulging in “fantasies” by dismissing challengers’ access to judicial review, highlighting his commitment to ensuring that legal principles are grounded in the Constitution and statutory law.
The Feres doctrine has faced criticism for creating a legal environment where service members are denied the same rights to seek redress as civilians. Critics argue that this doctrine effectively places military personnel in a separate and unequal category concerning legal remedies for personal injuries.
As Justices Thomas and Gorsuch continue to challenge the validity of the Feres doctrine, there is a growing conversation about the need to reevaluate this principle. Their dissent signals a potential shift in the Court’s approach to cases involving military personnel and their ability to seek justice for injuries suffered during service.