In Berkovitz v. United States, 1987, the Supreme Court ruled that the federal government could be held liable for injuries caused by a polio vaccine under the Federal Tort Claims Act (FTCA). The parents of a child who contracted polio from an oral vaccine sued the U.S., alleging negligence in licensing and approving release of the particular lot of vaccines. The government argued it was immune from liability due to discretionary function exception in FTCA which protects certain governmental decisions based on policy judgment. However, Justice Thurgood Marshall writing for unanimous court found that if a federal agency fails to act in accordance with specific mandatory directives then its conduct cannot be protected by discretionary function exception. Thus, if there were violations of federal law or regulations during approval process then such actions would not fall within this immunity protection.

In the dissenting opinion for Berkovitz v. United States, Justice Scalia argued that the majority's decision expanded the Federal Tort Claims Act (FTCA) beyond its intended scope and purpose. He contended that Congress did not intend to make policy decisions subject to judicial review under FTCA, but rather meant to provide a remedy for ordinary torts committed by government employees in carrying out their duties. The majority’s interpretation would open up all sorts of governmental activities to litigation and potentially hinder effective governance due to fear of lawsuits. Furthermore, he disagreed with the idea that a failure on part of an agency or employee could be considered as an actionable wrong under FTCA if it was related to discretionary functions or duties; such failures should only be actionable if they involve violation of mandatory regulations or policies which leave no room for discretion.