Worse, Congress has consistently refused over the past 60 years to ensure that courthouse doors remain open to military personnel and their families. In one recent iteration of this battle, in 2009, it was reported that Congressional Republicans refused to go along because doing so it would allow more malpractice cases to get to trial, a goal many of those very same Republicans find contrary to their so-called "tort reform" agenda. It's a legal issue, it's a political issue, and its a moral one: How much do we really care about these families?

The Background

It starts with a 1946 law, the Federal Tort Claims Act (FTCA), and a 1950 Supreme Court case, Feres v. United States. The "Feres Doctrine" stands for the general proposition that the U.S. cannot be sued for money damages under the FTCA for any injuries to or death of military personnel while on active duty. Right now, an on-duty soldier cannot sue his medical doctors for malpractice. In essence, this means that military personnel are precluded from exercising certain rights that the rest of us possess -- the legal right to sue America for negligence.

In 1987, the Feres doctrine came back to the Supreme Court in a case styled United States v. Johnson. It is worth stopping here for a moment because Johnson was a bitterly-contested 5-4 decision from a High Court of which only Justice Antonin Scalia remains today. And, in Johnson, Justice Scalia wrote a stinging dissent that advocates for military families still like to cite today. "Feres was wrongly decided," he wrote back in 1987, and "heartily deserves the widespread, nearly universal criticism it has received."

Justice Scalia's problem with Feres, as applied in Johnson, stemmed from the majority's interpretation of the Tort Claims Act. The statute, Scalia argued, specifically and only very narrowly exempted the government from liability for "any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war" (emphasis in original). The Supreme Court had no business in Feres, or in Johnson, extending this governmental immunity under the Tort Claims Act.

Of the victim in the case, Justice Scalia wrote:

Had Lieutenant Commander Johnson been piloting a commercial helicopter when he crashed into the side of a mountain, his widow and children could have sued and recovered for their loss. But because Johnson devoted his life to serving in his country's Armed Forces, the Court today limits his family to a fraction of the recovery they might otherwise have received. If our imposition of that sacrifice bore the legitimacy of having been prescribed by the people's elected representatives, it would (insofar as we are permitted to inquire into such things) be just. But it has not been, and it is not. I respectfully dissent.

Fifteen years after Justice Scalia wrote those words, the topic of the inherent unfairness of the Feres doctrine, as applied to the Tort Claims Act, was the subject of a long Senate Judiciary Committee hearing. At the time, in 2002, with American troops fighting in Afghanistan but not yet in Iraq, Sen. Arlen Specter, the longtime Republican from Pennsylvania, echoed the justice's old concerns. Sen. Specter led off the hearing with these words:

I have introduced legislation to amend the so-called Feres doctrine because it seems to me that the doctrine has produced anomalous results which reflect neither the will of the Congress nor common sense. There have been many examples where a soldier who is the victim of medical malpractice at an Army hospital cannot sue the Government for compensation, but a civilian who suffers the same treatment on an allegation of malpractice would be entitled to recover against the Government. Similarly, if a soldier driving home from work on an Army post is hit by a negligently driven Army truck, that soldier is barred from suing the Government, but a civilian in identical circumstances would not be so barred.

Six years later, in 2008, the CBS Evening News chronicled the problem. There were more hearings. Of course, nothing ever happened. Nothing ever happens to Feres and no one ever meaningfully amends the Tort Claims Act. No politician dares to introduce federal legislation designed to extend the government's protection under the Act -- to formally and legislatively increase the scope of the Feres doctrine. Such a measure would be the subject of an opposition attack ad in a matter of hours. So, instead, as you'll see below, the expansion of the doctrine is being pushed upon the judiciary by the executive branch.