A Rare SCOTUS Case That Pitted Thomas Against Alito

Have you ever wondered which members of the U.S. Supreme Court vote together most often? Well, fear not, because SCOTUSblog’s Kelsey Dallas crunched the numbers last year and determined the answer: Justices Clarence Thomas and Samuel Alito “agreed in 97% of all cases resolved with opinions from the court and in 100% of the closely divided (6-3 or 5-4) ones in the 2024-25 term.” In the vast majority of recent cases, Thomas and Alito stood together.

But in a notable 6–3 decision that was issued yesterday, Thomas and Alito actually stood on opposite sides of the dispute. Is this the exception that proves the rule?

The case is Hencely v. Fluor Corporation. It originated with a suicide bombing carried out by a Taliban operative at the U.S. Bagram Air Base in Afghanistan. Army Specialist Winston Hencely was severely injured in the attack and later filed suit for negligence in state court against the Fluor Corporation, the U.S. military contractor that employed the bomber. In its own investigation of the matter, the U.S. Army faulted the Fluor Corporation for, among other things, “an unreasonable complacency by Fluor to ensure Local National employees were properly supervised at all times, as required by their contract.” The question presented by the case was whether Hencely’s state lawsuit may proceed or whether it is preempted by federal law.

Writing for the majority, Thomas held that Hencely’s state negligence suit may move forward. “No provision of the Constitution and no federal statute justifies that preemption of the State’s ordinary authority over tort suits,” Thomas wrote. “Nor does any precedent of this Court command such a result.” Thomas’ opinion was joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson.

Writing in dissent, Alito basically accused Thomas of letting federalism run amok to the detriment of the war powers of the national government. “May a State regulate security arrangements on a military base in an active warzone?” Alito demanded. “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’s dissent was joined by Chief Justice John Roberts and Justice Brett Kavanaugh.

What a fascinating line up. Not only do we have the rare sight of Thomas butting heads with Alito, but we have Thomas joined by all three Democratic appointees, while Alito has mustered the votes of only Roberts and Kavanaugh. In this case, as in certain others, the principles of federalism helped to make for some unusual judicial bedfellows.

Does President Donald Trump think he is going to lose the birthright citizenship case Trump v. Barbara? Comments made by the president this week on social media strongly indicate that he does expect to lose.

First, on Tuesday, Trump complained that while “the Democrat Justices stick together like glue, totally loyal to the people and ideology that got them there,” “certain Republican Appointees” have shown “very little loyalty to the man who appointed them.” Trump then brought up the Supreme Court’s pending birthright citizenship ruling. “Based on the questioning by Republican Nominated Justices that I watched firsthand in the Court, we lose,” Trump wrote.

Then, one day later, Trump had this to say: “The Republican Justices don’t stick together, they give the Democrats win after win….Their Tariff decision was an unnecessary and expensive slap in the face to the U.S.A., and a giant victory for its opponents. If they rule against our Country on Birthright Citizenship, which they probably will, it will be even worse, if that’s possible.”

My love for the heavy metal band Slayer is a matter of record around these parts. So perhaps it will come as no surprise when I tell you that I was thrilled to learn that Slayer will be celebrating the 40th anniversary of their classic 1986 album, Reign in Blood, by performing it in full at a pair of concerts later this year. Some years back, I was fortunate enough to see Slayer perform the same album in full as part of a killer set at New York City’s late, lamented Roseland Ballroom. I probably can’t make the big Slayer shows later this year, alas, so if you’re there, bang your head for me.