The Supreme Court ruled Wednesday that a permanently disabled U.S. Army veteran may sue military contractor Fluor Corporation over a 2016 Taliban suicide bombing at Bagram Airfield in Afghanistan, a decision that united Justice Clarence Thomas with every liberal member of the bench while three fellow conservatives dissented.
The 6-3 ruling vacated a lower court judgment that had shielded Fluor from state-law negligence claims. Thomas wrote the majority opinion. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson joined him. Justice Samuel Alito dissented, joined by Chief Justice John Roberts and Justice Brett Kavanaugh.
The case centers on former Army Specialist Winston Tyler Hencely, who confronted a Taliban operative on the base in 2016. The bomber, who, as Fox News reported, was working for Fluor Corporation, detonated a suicide vest. Hencely suffered a fractured skull and brain injuries. He is now permanently disabled.
Hencely sued Fluor in the U.S. District Court for the District of South Carolina, bringing state-law tort claims for negligently retaining and supervising the attacker. The district court granted summary judgment to Fluor. The U.S. Court of Appeals for the Fourth Circuit affirmed, holding that Hencely's claims were preempted, essentially that federal war powers barred a state tort suit arising from combat-zone activity.
Thomas and the five justices who joined him disagreed. The majority opinion laid the issue out plainly, as described by Thomas:
"The Fourth Circuit's decision held Hencely's claims preempted even though the conduct complained of was neither ordered nor authorized by the Federal Government. No provision of the Constitution and no federal statute justifies that preemption of the State's ordinary authority over tort suits. Nor does any precedent of this Court command such a result."
The Court vacated the Fourth Circuit's judgment and remanded the case for further proceedings. The message was direct: a military contractor does not get automatic immunity when the federal government never told it to do what it did.
That distinction matters. The opinion noted that Hencely and the United States military both said Fluor's conduct was not authorized by the military, and that it even violated instructions the military had given Fluor as a condition of operating on the base. In other words, the contractor was not following orders. It was defying them.
Readers who follow the Court closely may recall that the justices have split in unexpected ways on several recent cases. This one scrambled the usual ideological map in a manner that deserves attention.
Alito did not mince words. His dissent argued that the Constitution's grant of war powers to the federal government preempts state-law tort suits over security arrangements in active combat zones, full stop.
He wrote:
"May a State regulate security arrangements on a military base in an active warzone? 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 pressed further, framing the majority's holding as an encroachment on exclusive federal authority over warfare:
"The Constitution divides authority between the Federal Government and the States in many areas, but not when it comes to war. War is the exclusive domain of the Federal Government, but the Court allows state (or foreign law) to encroach on that domain. The Constitution precludes that encroachment, and therefore petitioner's suit is preempted. Because the Court holds otherwise, I respectfully dissent."
Roberts and Kavanaugh joined Alito's dissent without issuing separate opinions. The three dissenters shared a concern that allowing state tort suits to reach into warzone security decisions could open a door that the Constitution intended to keep shut.
Supreme Court decisions that cross the expected ideological divide attract attention, and rightly so. Thomas, the Court's longest-serving conservative, writing a majority opinion joined by all three liberal justices plus Gorsuch and Barrett is not the standard alignment. It reflects the specific legal question at hand rather than any broader political realignment.
The core principle Thomas articulated is one conservatives should recognize: the government cannot shield a private company from accountability when that company acted without government authorization and against government instructions. Federal preemption exists to protect federal authority, not to grant blanket cover to contractors who break the rules.
At the same time, Alito's dissent raises a serious structural concern. If state courts and juries can second-guess security decisions made in active combat zones, even when those decisions were made by contractors rather than soldiers, the line between state authority and federal war powers gets blurry fast. That tension will not resolve itself with one ruling.
The current composition of the Court, and the question of how long it holds, remains a topic of intense interest. Both Alito and Thomas have signaled they have no plans to leave anytime soon, which means this mix of judicial philosophies will continue producing outcomes that defy easy partisan labels.
Lost in the legal architecture is the man who started all of this. Winston Tyler Hencely was a young Army specialist stationed at Bagram Airfield, one of the most heavily trafficked military installations in the Afghan theater. In 2016, he confronted a Taliban operative who turned out to be wearing a suicide vest. The bomber detonated it. Hencely survived, but barely. A fractured skull. Brain injuries. Permanent disability.
He did what soldiers do: he moved toward the threat. The contractor that employed the threat, Hencely alleged, failed to properly vet and supervise the attacker. The U.S. military itself agreed that Fluor's conduct was unauthorized and violated the conditions under which the company was allowed to operate on the base.
Two lower courts told Hencely he could not sue. The district court in South Carolina granted summary judgment to Fluor. The Fourth Circuit affirmed. For years, a permanently disabled veteran had no legal avenue to hold the contractor accountable, not because the facts were in dispute, but because the courts concluded the Constitution blocked the claim entirely.
The Supreme Court said otherwise. The case now goes back to the lower courts for further proceedings. Hencely has not won his lawsuit. He has won the right to pursue it.
The broader question of contractor accountability in war zones is not going away. As the Court navigates these issues, internal divisions among the justices on procedural and substantive questions continue to shape outcomes in ways that neither party's base can always predict.
Conservatives who believe in limited government and the rule of law should not be troubled by this ruling. The majority did not say states can regulate the military. It said states can hold private companies accountable when those companies act outside federal authority and against explicit federal instructions. That is a distinction with a difference.
Fluor Corporation is not the U.S. Army. It is a private contractor that, according to the Court's opinion, employed a Taliban operative and failed to follow the military's own rules. If the facts bear out at trial, the company's negligence contributed to the permanent disabling of an American soldier. The idea that federal preemption should shield that conduct, conduct the federal government itself says it never authorized, stretches the doctrine past its purpose.
Alito's concern about state courts reaching into warzone decisions is legitimate and worth watching on remand. But Thomas drew a clear line: preemption protects government-authorized conduct. It does not protect unauthorized conduct simply because it happened in a war zone.
Meanwhile, the political landscape around the Court itself continues to shift. Speculation about future vacancies remains a constant backdrop to every major decision, and rulings like this one remind observers that the justices do not always line up the way pundits expect.
The case returns to the lower courts. Hencely will have to prove his negligence claims against Fluor on the merits. The Supreme Court did not rule on whether Fluor was actually negligent, only that the Constitution does not bar the lawsuit from going forward.
Several open questions remain. The full scope of Fluor's vetting and supervision practices at Bagram has not been publicly litigated. The specific instructions the military gave Fluor, and how Fluor allegedly violated them, will presumably be examined in detail on remand. And the broader legal question of where federal preemption ends and state tort authority begins in military contracting will continue to develop case by case.
For now, a veteran who lost his health confronting a suicide bomber on an American military base has something he did not have before Wednesday: his day in court.
When a private contractor defies the military's own rules and an American soldier pays the price with his body, the least the legal system can do is let him make his case. Six justices understood that. The other three worried about the precedent. But accountability for the people who put a bomber on a base is not a slippery slope, it is the floor.
