A rare clash between Supreme Court justices Samuel Alito and Clarence Thomas left the internet stunned on Wednesday after Alito dissented in the case involving a Taliban suicide bombing and whether federal or state law should take precedence, Newsweek reported.
Army specialist Winston T. Hencely filed the lawsuit after he suffered a fractured skull and brain injuries at the 2016 attack on a U.S. base in Afghanistan. An Army investigation determined that military contractor Fluor Corporation was primarily responsible, claiming it had “negligently supervised Ahmad Nayeb, a Taliban operative who carried out the attack.” He had reportedly been hired in a military initiative called “Afghan First,” which required contractors to hire Afghans and help stimulate the local economy and improve the country’s government.
The high court ruled to vacate an appeals court’s judgment and said the military contractor can be sued, with Thomas writing an opinion that was joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett and Ketanji Brown Jackson.
“No provision of the Constitution and no federal statute justifies that preemption of the State’s ordinary authority over tort suits. Nor does any precedent of this Court command such a result,” Thomas wrote.
Alito, who was joined by Chief Justice John Roberts and Justice Brett Kavanaugh, wrote a dissenting opinion.
“May a State regulate security arrangements on a military base in an active warzone? May state judges and juries pass judgment on questions that are inextricably tied to military decisions that balance war-related risks against long-term strategic objectives? In my judgment, the answer to these questions must be ‘no,’ and for that reason, this state-law tort case is preempted by the Constitution’s grant of war powers exclusively to the Federal Government,” Alito wrote.
Legal experts reacted to the news on social media.
“A Thomas opinion with an Alito dissent. It’s like finding out that your best friends are seeing a marriage counselor,” Margot Cleveland, senior legal correspondent at The Federalist, law clerk and longtime professor, wrote on X.
“I hate it when mommy and daddy fight,” Air Force veteran, former Texas state representative candidate and cyber security expert Matt Beebe wrote on X.
“This is not the 6-3 opinion you were looking for Thomas, joined by Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Alito, dissenting, with Roberts and Kavanaugh,” Jonathan H. Adler, William & Mary law professor and co-founder of the Society for the Rule of Law, wrote on X.
“This makes perfect sense, but only if you think of the politics of it,” former Trump administration White House lawyer Andrew Kloster wrote on X.
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