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).
Justice Clarence Thomas exposed sharp divisions Wednesday among the conservative justices by siding with an Army hero left "permanently disabled" after a 2016 Taliban suicide bombing attack at a U.S. base in Afghanistan.
For Thomas, Justices Neil Gorsuch, Amy Coney Barrett, Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor, the 4th U.S. Circuit Court of Appeals was wrong to conclude federal law "preempted" former Army specialist Winston T. Hencely's attempt to hold a military contractor accountable in state court for negligently hiring and supervising "Taliban operative" and bomber Ahmad Nayeb.
"Hencely saw the perpetrator, Taliban operative Ahmad Nayeb, as Nayeb was walking toward a Veteran's Day 5K race. When Hencely attempted to question him, Nayeb detonated his suicide vest. The explosion killed 5 and wounded 17. Hencely, then just 20 years old, suffered a fractured skull and brain injuries. The Army concluded that Hencely's intervention 'likely prevent[ed] a far greater tragedy,'" the justice wrote, describing the events of Nov. 12, 2016.
While Thomas is not known for his willingness to make it easier to sue the government for civil rights violations, he's been crystal clear on his views about the Feres Doctrine, which holds that the Federal Tort Claims Act's (FTCA) waiver of federal immunity does not apply in cases "where the injuries arise out of or are in the course of activity incident to military service."
And on Wednesday, Thomas had his chance to weigh in with impact, holding that the "preemption rule on which the Fourth Circuit relied" in ruling against Hencely "lacks any foundation in the Constitution, federal statutes, or our precedents" — especially considering that Nayeb's conduct "was 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."
Jerry Lambe contributed to this report.
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