Update 10/22/25:
Case-level predictions shift only modestly with the updated model (experience-2). Before argument, the predicted probability of reversal was 71 percent; after argument 59 percent. Votes shift toward affirm for several justices, notably those on the left of the Court (and Gorsuch).
Updated vote predictions
Initial report:
Normally, you can’t sue the federal government for damages because it has sovereign immunity. The government waived immunity in the Federal Tort Claims Act, which allows you to recover damages if, say, a postal truck hits your car. What if the post office loses your mail? Can you sue? Well, the Act also contains an exception within its exception for “any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” The exception makes a great deal of sense—the post office delivers over 150 billion pieces of mail per year, and if they make a mistake in even a small fraction of those deliveries, claims could overwhelm the agency (and the courts). So if you fit in that exception, it’s back to sovereign immunity, and you’re out of luck.
Okay, but what if the post office workers “intentionally” did not deliver the mail. Is that considered a “loss” or “miscarriage” of mail? Or does intentionality take it out of the exception? The Court considers that question of statutory interpretation in United States Postal Service v. Konan. Here, Konan alleges that the postal employees intentionally refused to deliver her mail as part of a “two year campaign of racial harassment.” Konan is a Black property owner who was trying to collect mail for her tenants. The lower court decision (Fifth Circuit) said that intentional non-delivery is not a “loss,” “miscarriage,” or “negligent transmission,” and therefore this case is outside of the exception—so Konan could avail herself of the FTCA.
Part of me is a little surprised they granted cert on this case. Pragmatically, it’s not as though intentional non-delivery of mail appears to be a widespread problem. It’s also not an unusually weighty legal issue. It turns on standard application of statutory interpretation to a few isolated words (“loss,” etc). The case is a battle of dictionaries and other conventional methods of interpretation. But going in favor of cert, there is tension between the Fifth Circuit’s decision and other circuits, which have held that theft of mail by employees, another intentional postal action, fits within the exception. I also suspect that parts of the Court may bridle at the expansion of government liability. And there is the specter of elections and mail-in ballots lurking in the background.
Overall, both before and after argument, the model predicts the Court will reverse the Fifth Circuit. Before argument, the probability of reversal was about 64 percent; after argument, it was about 67 percent. The Court is likely to align the Fifth Circuit with the spirit of two other circuits, bringing intentional non-delivery within the exception and denying FTCA relief to parties such as Konan. My human reading of the case and argument is that I would not be surprised by dissents from Sotomayor, Jackson, and Kagan, all of whom questioned the government position aggressively. Among the justices, the model predicts they’re most likely to affirm (with Roberts, perhaps oddly).
Pre- and post-argument vote predictions
