481 U. S. 681
May 18, 1987
During a rescue mission in a helicopter, a member of the Coast Guard named Horton Winfield Johnson died due to negligence of FAA air traffic controllers. Although the Federal Tort Claims Act (FTCA) ostensibly gave Johnson’s family the right to sue the FAA for negligence, a Supreme Court case from 1950 called Feres disallowed claims on behalf of members of the military who were acting within the scope of their service. The question in this case was whether the Feres rule applied when the guilty government party was not another member in the military, but a civilian such as an air traffic controller.
The Court ruled 5-4 that the identity of the negligent actor did not matter, and that recovery was always barred when the injured party was a member of the military on duty. Writing for the majority, Powell looked at the rationales for the Feres decision. First, the federal nature of the military meant that tort remedies, which were based on state law, ought to be inappropriate. Second, federal law provided lots of other benefits and compensation to the families of military members who die on duty. Third, allowing military members to bring tort claims would undermine the effectiveness and functionality of the military. Because all of these rationales applied regardless of the negligent actor’s identity, the Court held that Feres barred an FTCA remedy for Johnson’s family.
Scalia, joined by Brennan, Marshall, and Stevens, dissented. He said that Feres was wrongly decided. The plain text of the FTCA unarguably allowed those in the military to bring tort claims while on duty. Not content to rest there, Scalia went through all the rationales offered in the Feres decision for its rule, and made a devastating case that every single one of them was weak, and not good public policy. He showed that the Feres rule was a horrible one, led to all sorts of inconsistencies in tort law, and fundamentally ignored the will of Congress. Scalia was dead on, and it’s shameful that five members of the Court chose to defer to precedent.
As a general rule, I dislike tort actions. They absolutely pulsate with greed and vindictiveness. Nonetheless, I am shocked and appalled by this decision. Nothing at all gives the Supreme Court the right to ignore the choices of Congress, precedent or no precedent. I’m reminded of the time in Matthew 15 when Jesus rebukes the Pharisees for nullifying the commandments of God in favor of their own traditions. Blind adherence to precedent is exactly like that. While this is not the worst decision of the 1986-1987 term morally, there’s a good case to be made that it’s the most lawless.