I appreciate what Judges Nelson and Nguyen write here. Truly.
But I feel like it's almost certainly for naught. How many times have federal judges written to strongly urge that the Supreme Court limit (or overrule) the Feres doctrine, which holds that servicemembers categorically can't sue for injuries sustained during military service? Three dozen? Five dozen? A hundred?
Does the Supreme Court seem to care? Does it actually take up the matter? No. Not at all.
As Judge Nguyen writes in her opinion: "For the past sixty-three years, the Feres doctrine has been criticized by 'countless courts and commentators' across the jurisprudential spectrum. Id. at 295; see also United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting) (“Feres was wrongly decided
and heartily deserves the widespread, almost universal criticism it has received.”)."
What are the odds that this latest missive by the Ninth Circuit changes things? Slim to none.
That doesn't mean you don't write the thing. But once you've read so many nearly identical concurrences decade after decade, you've got to wonder: What's the point? No one seems to be listening.
Nonetheless, the motto of my college was Vox Clamantis in Deserto. So I guess you just keep on crying out. As the Ninth Circuit does here.