483 U. S. 669
June 25, 1987
While in the Army, James Stanley was involuntarily given large quantities of LSD to study the drug’s effect on humans. It had an effect all right: his life was destroyed. He attempted to sue the army officials who had done this, under both the Federal Tort Claims Act (FTCA), and under the Bivens doctrine, which allowed for redress against government agents in some circumstances. The government argued that the need for military discipline was an interest important enough to foreclose any Bivens claim for military-related matters.
The Court unanimously rejected Stanley’s FTCA claim on some ticky-tacky procedural grounds. Then, with Scalia writing, it rejected his Bivens claim 5-4. There were indeed ‘special factors’ in military life that counseled against allowing Bivens suits. The Constitution gave Congress extensive power to control the military, and military discipline would fall apart if everything could be second guessed in court. For these reasons, Scalia said that the FTCA ‘incident to service’ test established in Johnson should be adopted in the Bivens realm as well.
Brennan, joined by Marshall, began his dissent by pointing out that no less an authority than the Nuremberg Tribunal had condemned involuntary scientific testing in the strongest terms. He then observed that Bivens liability judgments were almost analytically identical to immunity judgments. Brennan argued that the military had never been granted absolute immunity in other legal contexts, and thus total shielding from Bivens was inappropriate. He also showed that the Court’s new rule was ahistorical. In a section joined by Stevens, Brennan found the worries about military discipline overblown, and criticized the majority for blindly adopted the FTCA standard. In a brief dissent of her own, O’Connor expressed agreement with the majority’s interpretative framework, but claimed that LSD experimentation could not legitimately be considered ‘incident to service.’
I seem to have hit a long string of cases where either Brennan or Stevens hits it out of the park in dissent. Hope it doesn’t last much longer! Favorite quote: “I cannot comprehend a policy judgment that frees all federal officials from any doubt that they may intentionally, and in bad faith, violate the constitutional rights of those serving in the Armed Forces.” As I said in the last case, I really hate governmental immunity, especially when people like Stanley have had their lives ruined.
As a side note, this is one of the many reasons why I have no desire to ever be a part of the military. When you join the military, you place yourself under the authority of superiors who have as great a capacity for evil as for good. And quite often, as Stanley’s case and countless other incidents show, the capacity for evil gets exercised.