The Supreme Court’s three liberals joined Justice Clarence Thomas on Wednesday to allow a veteran’s lawsuit over a suicide bombing to move forward.
Then-Army Specialist Winston Tyler Hencely was permanently disabled in 2016 when a Taliban operative working for a military contractor, Fluor Corporation, carried out a suicide bombing at the largest U.S. base in Afghanistan, according to the court’s opinion.
When Hencely sued Fluor under state law, the military contractor argued his case was preempted by federal law. In a 6-3 decision, the Supreme Court sided with Hencely, reversing a lower court’s ruling that found “Hencely’s claims preempted even though the conduct complained of was neither ordered nor authorized by the Federal Government.”
“No provision of the Constitution and no federal statute justifies that preemption of the State’s ordinary authority over tort suits,” Thomas wrote in the majority opinion, joined by Justices Ketanji Brown Jackson, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Neil Gorsuch. “Nor does any precedent of this Court command such a result.”
Justice Samuel Alito, Chief Justice John Roberts and Justice Brett Kavanaugh dissented.
“The Constitution divides authority between the Federal Government and the States in many areas, but not when it comes to war,” Alito wrote in the dissent. “War is the exclusive domain of the Federal Government, but the Court allows state (or foreign law) to encroach on that domain. The Constitution precludes that encroachment, and therefore petitioner’s suit is preempted.”
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