If the Postal Service refuses to deliver your mail, surely you can sue the government over your losses, right? 

Wrong, according to a new Supreme Court opinion. 

Tuesday’s 5-4 ruling in U.S. Postal Service v. Konan was authored by Justice Clarence Thomas and joined by all the other Republican appointees except for Justice Neil Gorsuch, who joined Justice Sonia Sotomayor’s dissent. 

The case required the justices to interpret the Federal Tort Claims Act — specifically, the part of the act that says the government is immune from claims “arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 

The question was whether that so-called postal exception applies to intentional failures to deliver mail.

It does, Thomas wrote for the majority. 

That interpretation led the court to rule against Lebene Konan, who sought damages for the Postal Service’s allegedly intentional withholding of mail from her two rental properties in Texas. Konan, who is Black, claimed that postal workers withheld delivery for discriminatory reasons. She sued the government for loss of rental income, deprivation of mail and distress the postal workers caused her. She also sued two workers for equal protection violations. 

A trial judge rejected her claims. The federal appeals court that covers Texas agreed with the equal protection rejection but disagreed that the government itself was immune under the postal exception. Intentional failure to deliver mail doesn’t count as a “loss, miscarriage, or negligent transmission,” the appeals court reasoned, while conceding that appeals courts in other parts of the country had ruled differently on the legal question. The Supreme Court is more likely to step in and resolve an issue when there is disagreement in the lower courts. The government appealed to the justices, leading to Tuesday’s divided high court ruling, which vacated Konan’s appellate win.

As the court sometimes does when interpreting legal texts, it relied in part on old dictionaries and newspaper articles. Thomas cited them to justify a broader interpretation of “loss” and “miscarriage” as he said those terms would have been understood at the time of the law’s enactment in 1946. 

He wrote that “loss” of mail means “a deprivation of mail,” quoting the 1968 edition of Black’s Law Dictionary that said, “Loss is a generic and relative term; it is not a word of limited, hard and fast meaning.” Quoting from a 1911 article in the Kansas City Star, he wrote that “ordinary speakers used ‘miscarriage’ to refer to problems with mail caused by intentional misconduct. When a mail pouch was ‘stolen,’ a newspaper reported that the letters ‘[m]iscarried.’” Quoting from a 1934 article in the Muskogee Times-Democrat, he wrote that the paper “explained that a letter ‘[m]iscarried’ because it was ‘delayed.’” 

That reading persuaded only a bare majority of the court. Sotomayor wrote in her four-justice dissent that the majority “transforms, rather than honors, the exception Congress enacted.” 

She said the dictionaries don’t help because they don’t address an individual’s state of mind, which is important in a case that centers on allegations of intentional wrongdoing. 

Dismissing the old paper clippings, she called them “two cherry-picked newspaper references almost 20 years apart, and at least 30 years before the enactment of the FTCA.” Plus, she noted that those papers used the word “miscarried,” not the word “miscarriage,” which is what appears in the law. “If ‘miscarriage’ were in fact ordinarily used to describe intentional misconduct, one might expect that actual examples of the usage would be easier to come by,” she wrote. 

But was this case really just about grammar, old dictionaries and newspapers, or were broader considerations at play?  

Touting the importance of the postal exception, Thomas wrote that “the frequency of postal workers’ interactions with citizens” means that lawsuits “would arise so often that they would create a significant burden for the Government and the courts. And their cost to taxpayers would depend on the value and importance of the mail’s contents, over which the Government typically has no control.” 

But even if ruling for Konan would have meant more suits against the government, “that would not provide this Court with authority to change the text Congress enacted,” Sotomayor wrote. She said that Congress provided only a limited exception and that it’s “not the role of the Judiciary to supplant the choice Congress made because it would have chosen differently.”