Justices cast doubt on Texas immunity claim in vet's lawsuit

By Mark Sherman
Associated Press

WASHINGTON (AP) — The Supreme Court on Tuesday cast doubt on Texas' claim that it can't be sued by a former state trooper who says he was forced out of his job when he returned from Army service in Iraq.

The justices heard arguments in a dispute over a federal law that was enacted in 1994 in the wake of the Persian Gulf war to strengthen job protections for returning service members.

Over 90 minutes, the justices discussed the Vietnam War, Russia's invasion of Ukraine, Alexander Hamilton and even “Hamilton,” the musical, as they tried to sort through whether states are shielded from lawsuits filed by veterans who complain that their jobs were not protected, in violation of the federal law.

At the heart of the case is Congress' power to wage war and states' acknowledgments that they lacked similar authority, both laid out in the Constitution.

"We don't know what's going to be happening in the next 50 years. We don't know what's going to be happening in the next 50 days in terms of national security and personnel," Justice Brett Kavanaugh said.

The court is weighing an appeal by Le Roy Torres, who spent a year in Iraq and was discharged as a captain after nearly 19 years in the U.S. Army Reserve.

Torres says he suffered lung damage from exposure to open burn pits on his base in Iraq.

The state and Torres dispute what happened when he returned to Texas, unable to resume his job as a state trooper because of the damage to his lungs. He eventually resigned and later filed his lawsuit. A state appellate court dismissed it, and the justices stepped in.

The Biden administration is backing Torres' right to sue the state. The federal government, which also has the right to sue states under the law, has only sued 109 times since 2004 and just twice since 2015, Justice Department lawyer Christopher Michel acknowledged in response to a question from Justice Samuel Alito.

But "the numbers are much larger when you look at how many soldiers' claims have been successfully resolved" without going to court, Michel said.

Fifteen other Republican-led states are calling on the court to side with Texas and rule out private lawsuits like Torres'.

Congress first allowed returning service members to sue states to keep their jobs in 1974, recognizing discrimination because of opposition to the Vietnam War.

"The Vietnam War is what made the statute necessary," Justice Sonia Sotomayor said.

And opposition to a future war could result in a similar situation, Justice Amy Coney Barrett said.

"Let's say we get involved in Ukraine and states say we shouldn't be," Barrett said.

The discussion briefly turned to the theater when Justice Stephen Breyer invoked Hamilton's "You'll Be Back" to illustrate that George Washington's frustration with the states' reluctance to pay the Continental Army led to the establishment of a national defense.

"George III says, 'They'll be back. Wait and see. They'll come crawling back to me,'" Breyer said, capturing the sentiment, but not the lyrics to the song.

Just last week, the court allowed the Navy to take account of sailors' vaccination status in deciding on deployments, narrowing a lower court order. Three justices, Samuel Alito, Neil Gorsuch and Clarence Thomas, dissented from the high court's order.

Gorsuch and Thomas seemed the most amenable to Texas' arguments Tuesday. "I'm perhaps not as enamored of Hamilton as some are," Thomas said.

Thomas again took part remotely Tuesday, following a nearly week-long hospital stay for what the court described as an infection. The court has not elaborated on the nature of the infection and there was no explanation of why Thomas was not in the courtroom.