WASHINGTON (AP) — The Supreme Court on Tuesday cast doubt on Texas’ claim it can’t be sued by a former state police officer who says he was forced out of his job when he returned from military service in Iraq.
The judges heard arguments in a dispute over a federal law enacted in 1994 after the Gulf War to strengthen job protections for returning military members.
For more than 90 minutes, judges debated the Vietnam War, Russia’s invasion of Ukraine, Alexander Hamilton and even Hamilton the Musical as they attempted to clarify whether states are protected from lawsuits by veterans who complain that their jobs are unprotected were in violation of federal law.
Central to the case is Congress’s power to make war and states’ admission that they lack similar authority, both of which are enshrined in the Constitution.
“We don’t know what will happen in the next 50 years. We don’t know what’s going to happen over the next 50 days in terms of national security and personnel,” Judge Brett Kavanaugh said.
The court is considering an appeal by Le Roy Torres, who spent a year in Iraq and was discharged as a captain after nearly 19 years in the US Army Reserves.
Torres says he suffered lung damage from exposure to open fire pits at his base in Iraq.
The state and Torres dispute what happened when he returned to Texas and was unable to resume his job as a state trooper because of damage to his lungs. He eventually resigned and later filed his lawsuit. A state appeals court dismissed it, and the judges stepped in.
The Biden administration supports Torres’ right to sue the state. The federal government, which also has the right under the law to sue states, has sued just 109 times since 2004 and only twice since 2015, Justice Department attorney Christopher Michel conceded when asked by Judge Samuel Alito.
But “the numbers are much larger when you look at how many claims have been successfully resolved by soldiers” without going to court, Michel said.
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Fifteen other Republican-led states are calling on the court to side with Texas in barring private lawsuits like Torres’.
Congress first allowed returning military personnel to sue states to keep their jobs in 1974 and recognized discrimination based on opposition to the Vietnam War.
“The Vietnam War made the statute necessary,” Justice Sonia Sotomayor said.
And opposition to a future war could lead to a similar situation, Justice Amy Coney Barrett said.
“Let’s say we get involved in Ukraine and states say we shouldn’t,” Barrett said.
The discussion briefly turned to drama when Judge Stephen Breyer invoked Hamilton’s “You’ll Be Back” to illustrate that George Washington’s frustration with states’ reluctance to pay the Continental Army led to the establishment of a national defense .
“George III says, ‘They will come back. Let’s wait and see. They’ll come crawling back to me,'” Breyer said, capturing the mood but not the lyrics of the song.
Just last week, the court allowed the Navy to take seafarers’ vaccination status into account when deciding deployment, limiting a lower court order. Three judges, Samuel Alito, Neil Gorsuch and Clarence Thomas, contested the High Court’s order.
Gorsuch and Thomas appeared most amenable to Texas’ arguments on Tuesday. “I may not be in love with Hamilton like some people are,” Thomas said.
Thomas attended remotely again on Tuesday after nearly a week in hospital for what the court described as an infection. The court did not elaborate on the nature of the infection, and no explanation was given as to why Thomas was not in the courtroom.
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This story has been corrected to show a federal law enacted in 1994, not 1991.