I. Introduction

On Tuesday, February 24th, 2026, Justice Thomas delivered the Supreme Court’s majority opinion in United States Postal Service (USPS) v. Konan, holding that the federal government cannot be sued for the intentional non-delivery of mail committed by postal workers against members of the public. This decision relied heavily on the statutory interpretation method of textualism; and as such, claimed its legitimacy in the premise that its holding was based on the most accurate, objective reading of the statutory text of the Federal Tort Claims Act’s postal exception. However, pure text rarely provides a sole objective answer, and in fact, can be used as a mask for more subjective determinations masquerading as objectivity. This is because language does not exist in a bubble and requires unspoken assumptions for proper engagement. This Essay will investigate the ways in which these unspoken assumptions, particularly shifts in the level of generality applied to the fact pattern, were not only themselves significant determinative factors, but also hidden by the overwhelming textualist focus of the oral arguments and majority opinion for USPS v. Konan. To further evidence this point, this Essay will compare the oral argument and majority opinion of Konan, in which the United States Supreme Court applied a very high level of generality to the fact pattern, to Dolan v. USPS where the Roberts Court also analyzed the bounds of the postal exception, but with a much lower level of generality—and ended up coming out the opposite way.

II. Relevant Law and Legal Theory

A. Sovereign Immunity, the FTCA, and its Waivers

The Federal Tort Claims Act (FTCA) was enacted in 1946 to address deficiencies in private persons’ ability to hold the federal government liable for the torts committed against them by agents of the federal government.[1] Prior to the FTCA, litigants faced the near insurmountable hurdle of “sovereign immunity,” a legal principle that prevents private persons from suing the federal government without its consent.[2] Thus, without the mechanism of the FTCA, in order to recover, individuals needed to persuade Congress to pass a private bill that ordered compensation for their particular loss.[3] However, having Congress individually examine and potentially legislate on every claim became too “arduous and distracting for Congress.”[4] Congress addressed this problem in the FTCA by expressly consenting to a limited waiver of sovereign immunity, stating that:

[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.[5]

In passing the FTCA, Congress further enumerated thirteen exceptions for situations where the U.S. government did not consent to a waiver of sovereign immunity, regardless of whether the actions of federal employees would meet the criteria of the aforementioned text.[6] These exceptions were done “to protect certain important governmental functions and prerogatives from disruption.”[7] One such exception is the so-called “postal exception,” at issue here, which exempts from FTCA coverage “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.”[8] The language of the postal exception “does not ‘immunize all postal activities,’” solely those that arise out of one of the three categories.[9]

Whether or not a case is found to fall within one of these exceptions is dispositive for a plaintiff’s quest to gain relief from the courts. This is because “[s]overeign immunity is jurisdictional in nature,”[10] representing a pre-requisite to get one’s claim into court in the first place. If the federal courts can claim no jurisdiction, they cannot hear, let alone redress, the injury at hand.

B. Textualism

The claim that one of the key roles of the Judiciary is “to find the best reading of the text of statutes” is not a hotly debated one.[11] However, that claim offers only questions, not answers. Mainly, it proposes the very question that has haunted the Judiciary since its conception: how do we find the best reading of the text of statutes? Superficially, textualism offers an attractive solution as it claims to be an objective form of analysis which limits opportunities for judicial activism.[12] One of the most famous proponents of textualism was the late U.S. Supreme Court Justice Antonin Scalia. He described textualism as a fair interpretation of the text in the situation at hand, with the underlying acknowledgement of the fact that “words do have a limited range of meaning.”[13] The perceived restraint and objectivity of textualism has led it to become a favored tool of statutory interpretation by the Roberts Court.[14] Still, while textualism might offer a compelling veneer, many practitioners and scholars have noted that textualism might simply disguise subjective jurisprudence in a mask of objectivity.

A significant critique of textualism is that its claim to objectivity is merely superficial. This critique has been articulated through different rationales. One such being, objective definitions are actually found through subjective discretionary choices about which definitions to elevate.[15] Another is that textualism often excludes relevant analysis regarding drafting intent.[16] Whichever rationale one follows, the result is the same: the focus of the analysis narrows, centering the colloquially objective text while silencing other considerations that both historical practice and modern theory claim to be necessary factors.[17]

C. Shifting the Level of Generality

When it comes to statutory interpretation, Scalia criticized the incorporation of additional assumptions into a textualist analysis, purporting that an “honest textualist” analysis begins and ends with the text.[18] However, that claim itself contains its own set of unwritten assumptions: particularly that text can exist in a bubble, untouched by tacit assumptions. This assumption reveals the fallacy of textualism—because a text cannot have legal consequence by itself. The practice of law is the practice of application of text to fact. Even if a textual analysis could be done completely objectively, a claim that this author is skeptical of, tacit assumptions regarding how to characterize and understand the facts that the law is being applied to are necessary. Thus, any textual analysis requires some assumptions to be made.

The theory of shifting the level of generality is born from the school of Legal Realism—which contends that there are no “universal truths” of law and that the decisions the Judiciary reaches are not fully insulated from “the normative preferences of the judges themselves.”[19] Georgetown Law Professor Girardeau Spann articulates the practice of shifting the level of generality as the use of tacit assumptions to manipulate the strength of articulated arguments by shifting the normative framework to which legal questions are applied.[20]

By imposing either a high or low level of generality, the very presentation of the question shifts. Professor Spann used the Court’s rationales in Lawrence v. Texas and Bowers v. Hardwick to show how levels of generality can be manipulated.[21] In both Lawrence and Bowers, the Court considered whether a state statute criminalizing same-sex sodomy was constitutional.[22] However, the questions they asked, and the breadth of the constitutional right they interrogated, were vastly different.[23] In Lawrence v. Texas, Justice Kennedy deployed a higher level of generality to hold a Texas law criminalizing same-sex sodomy unconstitutional because it interfered with the liberty rights of consenting adults to engage in their private relations.[24] In doing so, Justice Kennedy overruled the Bowers v. Hardwick precedent.[25] On the other hand, the Bowers Court used a significantly lower level of generality to find no constitutional violation by Georgia’s criminal sodomy statute because the Constitution does not create a constitutional right to engage in same-sex relations.[26] By shifting the level of generality from the lower level of generality of same-sex relations specifically, to the higher level of generality of intimate sexual privacy generally, the Court came to opposite outcomes.

This is not to say that the Court is being inherently manipulative by applying an unspoken level of generality to their application of law to facts—having an assumed level of generality is a practical necessity for all forms of legal analysis. However, it can often be both unspoken and dispositive.[27] Furthermore, the level of generality is something that can be manipulated by savvy judges or advocates to reach their desired outcome.[28]

Not all shifts in the level of generality in judicial opinions are equally apparent at first glance, some require additional analytical tools to expose. Such is the case in USPS v. Konan.[29] Alone, treating the level of generality of the alleged torts at a very general level might not seem like that big of an unspoken assumption. However, that unspoken assumption appears significantly more like an unspoken choice when compared to the much narrower level of generality applied to the facts of Dolan v. USPS, where the Supreme Court also analyzed the text of the postal exception.[30]

III. USPS v. Konan

A. Konan’s Allegations

The alleged facts and how the Court incorporated, or ignored, them are incredibly important for understanding the USPS v. Konan decision because this case arose under a motion to dismiss. This means that the Supreme Court was obligated to treat all of Konan’s assertions as fact for the purposes of this decision.[31] This is because such proceedings are governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure, which allows for courts to dismiss a case for “failure to state a claim upon which relief can be granted.”[32] When deciding whether to dismiss a case under Rule 12(b)(6), courts need to “accept[] all allegations in [the non-moving party’s] complaint as true.”[33]

The Respondent, Lebene Konan, filed suit against the United States Government under the FTCA for a litany of torts committed by two federal employees employed by the USPS. Respondent sued for the following torts: “loss of access to time sensitive mail”; “nuisance”; “intentional interfere[nce] with . . . prospective business relations”; “loss of significant income relating to the [r]esidences”; “conversion”; and “[I]ntentional [I]nfliction of [E]motional Distress” (IIED).[34] She alleged that USPS employees, Raymond Rojas and Jason Drake, used their positions in the Euless, Texas USPS office to execute a two-year long campaign of racially motivated harassment against her, a Black woman, and her tenants.[35] Konan stated that the motive for this harassment campaign was because “Drake and Rojas . . . d[id] not like the idea that she was a black person who leased rooms to white people.”[36]

Konan alleged that Rojas and Drake weaponized their positions at the USPS to undertake a harassment campaign against the Respondent, Konan. This harassment included refusal to deliver mail to two of Konan’s properties; however, the actions of Rojas and Drake went beyond simply refusing delivery. For example, the USPS employees changed the lock of Konan’s mailbox and gave the new key only to her white tenant; changed the name of the designated owner for one of her properties from hers to one of her white tenants; and frequently and arbitrarily marked mail addressed to Konan or her tenants as “undeliverable.”[37] Additionally, Drake created a created a photo ID requirement solely applicable to Konan, and Rojas taped a letter to Konan’s mailbox informing the public as to which of her tenants he was willing to deliver mail.[38]

As a result of these actions by federal employees, Konan suffered economic injury. “Ms. Konan and her tenants did not receive ‘important mail,’ including ‘doctor’s bills, medications, credit card statements, car titles and property tax statements’ [and] [t]he inability to receive mail drove away ‘both existing and prospective tenants,’ causing the value of Ms. Konan’s properties to decline and costing her rental income.”[39] Konan argued that the Federal Tort Claims Act (FTCA) covers this behavior as per Texas law, “Rojas and Drake would be liable . . . for nuisance, conversion, intentional infliction of emotional distress, and tortious interference with prospective business relations,” had the federal government been a private party.[40]

B. How the Parties Framed the Issue at Hand

The parties contested the scope of the terms “loss” and “miscarriage” within the text of the postal exception. The Respondent contended that neither term encompassed the intentional activities of Rojas and Drake. On the other hand, the Petitioner argued that the ordinary meanings of both “loss” and “miscarriage” encompassed the Respondent’s claims. Furthermore, they argued that since the question at hand was jurisdictional in nature, the Court only needed to affirm that these activities fit within the purview of one of these terms for the postal exception to apply and Konan’s claims to be barred by sovereign immunity.

The Petitioner argued that the term “loss” includes intentional conduct and thus that the postal exception should apply.[41] They asserted that the ordinary meaning of “loss” “is deprivation—i.e., failure to keep, have, or get something.”[42] Alternatively, the Respondent contended that “loss” simply referred to displaced or destroyed mail and thus does not apply to the circumstances at hand.[43]

The Petitioner argued a broad construction of the term “miscarriage”—asserting that “the ordinary meaning of miscarriage of mail . . . at the time of enactment” meant the failure of the mail to arrive to the intended recipient.[44] The Petitioner cited the Supreme Court’s opinion in Dolan—holding that miscarriage “refer[s] to failings in the postal obligation to deliver mail in a timely manner to the right address”—to support their definitional assertion.[45] They claimed that the Supreme Court should adhere to this definition as for the statutory principal to construe statutory terms per their “ordinary meaning at the time of enactment”—a textualist argument.[46] As the mail failed to be delivered to its intended recipient, whether by intent or negligence, it met the ordinary meaning of “miscarriage” and thus falls within the postal exception.[47] Finally, the Petitioner argued that the inclusion of “negligent transmission” in the postal exception elucidates congressional understanding that “miscarriage” applied to intentional acts.[48]

The Respondent argued that the definition of “miscarriage” occurs when the Postal Service “mistakenly delivers mail to a third party.”[49] The Respondent said that this definition is in line with the Supreme Court’s opinion in Dolan, in which they stated that “mail is ‘miscarried’ if it ‘goes to the wrong address.’”[50] Respondent also claimed that the Petitioner cited no precedent of “‘miscarriage’ being used so broadly,” and found further support for her position in the 1940 edition of the Postal Laws and Regulations which differentiate between miscarried mail and detained mail.[51] Finally, the Respondent claimed that the original meaning of “miscarriage” when the postal exception was passed “excluded wrongful conduct.”[52] Therefore, the Respondent contended that since her mail was neither delivered to the wrong address, nor mistakenly misdelivered, it was not “miscarried” under the statutory text.[53] The Respondent asserted that the Petitioner’s definitions of “loss” and “miscarriage” create a statutory interpretation problem, as both terms could cover the entire range of acts covered by the postal exception, rendering the other two terms “entirely superfluous.”[54]

C. Procedural History

1. The District Court

The District Court dismissed all of Konan’s FTCA claims, citing that they fall within the postal exception’s purview.[55] The court held that the text of the postal exception allows for intentional acts to be covered by the language of “loss” and “miscarriage” as neither word includes the modifier of “negligent” as does the word “transmission.”[56]

2. The 5th Circuit

The 5th Circuit reversed the District Court’s holding, stating that the behavior of the USPS employees fell outside the contours of the postal exception.[57] In rendering this decision, they cited that neither “loss” nor “miscarriage” applies to intentional acts.[58] The 5th Circuit held that “‘[w]here USPS intentionally fails or refuses to deliver mail to designated addressees, and never mistakenly delivers the mail to a third party,’ no miscarriage occurs.”[59] Additionally, they found that “loss” carries with it the connotation of a lack of intention; as such, it does not cover intentional acts.[60]

3. The Supreme Court

i. The Petition for Certiorari

The Government appealed the 5th Circuit’s holding. The Petitioners argued that the Fifth Circuit erroneously held that the actions of the USPS employees constituted neither a “loss” nor a “miscarriage” under the postal exception[61] and that the 5th Circuit’s holding created a circuit split with the First and Second Circuits.[62] The United States Supreme Court granted cert on the question of: “Whether a plaintiff’s claim that she and her tenants did not receive mail because Postal Service employees intentionally did not deliver it to a designated address arises out of ‘the loss’ or ‘miscarriage’ of letters or postal matter.”[63]

ii. The Majority Opinion and Dissent

The Majority reversed the 5th Circuit and held that the postal exception extended to cases of “intentional nondelivery of mail.”[64] To evidence the broad scope of the language of “miscarriage” and “loss,” Justice Thomas cited everything from Webster’s New International Dictionary 1568 (2d ed. 1934) to local newspaper reports from the late nineteenth and early twentieth centuries.[65] Justice Thomas declared that the “miscarriage” encompasses instances of both negligently miscarried mail and mail that was purposefully not delivered and/or returned to sender, stating that he “decline[d] to impose a limitation that has no basis in the dictionaries or ordinary usage.”[66] Furthermore, the Court interpreted “loss” to be broad enough to encompass any “deprivation of mail.”[67]

The majority technically limits its foreclosure to Konan’s claims resulting from “the intentional nondelivery of mail,” remanding her individual claims for further fact-finding on that issue.[68] However, what claims could survive this standard remains unclear,[69] and itself subject to shifting levels of generality.[70] This is especially true with such encompassing definitions of the terms “miscarriage” and “loss.”[71] However, this un-anchored framing of intentional nondelivery as a generalist contention in this case evidences the higher level of generality imposed by the majority. In fact, when analyzing the legal underpinning of the inclusion of intentional acts in the postal exception terminology of “loss” and “miscarriage,” Justice Thomas did not analyze these terms within the facts of Konan’s claims.[72] This approach fundamentally differs from that displayed in Dolan v. USPS,[73] which itself utilized a lower level of generality.[74]

Justice Sotomayor’s dissent—joined by Justices Jackson, Kagan, and Gorsuch—argued that Konan’s claims should have been considered outside of the scope of the postal exception and that the majority’s excessively broad opinion would have the impact of immunizing “all intentional and non-intentional actions [taken] in the delivery of mail” that have not already been held to be outside the postal exception by prior precedent.[75] While the dissent did cite some dictionary sources to justify their interpretation, they also engaged in principles of statutory interpretation and case law precedent in a way not present in the hyper-textualist focused majority opinion.[76] Further supporting her position, Justice Sotomayor cited Dolan’s articulation of the concern that too broad of a reading of the FTCA exceptions risks undermining the entire FTCA scheme.[77]

The majority and dissent had a battle of their chosen definitions and dictionaries, with both sides contending that their argument was the accurate fair reading of the text. The majority found a bare five Justices to agree, thus was able to claim a textualist victory. This Essay will not engage in the question of which side had the more objectively accurate understanding of the text. Instead, it will focus on the dramatic shift in the applied level of generality occurring in how the Supreme Court approaches the FTCA’s postal exception.

IV. Obscuring the Shifting Level of Generality

A. Dolan’s Lower Level of Generality

 USPS v. Konan was not the first time that the Roberts Court has addressed the scope of the FTCA’s postal exception. In Dolan v. USPS, the 7–1 majority[78] held that a postal worker’s negligence in placing delivered mail and packages on the plaintiff’s porch, creating a slip-and-fall hazard, was not immunized by the postal exception.[79] Holding that “negligent transmission” was not broad enough to cover the physical delivery of mail, the Court stressed attention to the exception’s narrow congressional purpose and the importance of ensuring that the Judiciary “does not go beyond” such purpose.[80] The Dolan Court reached this decision by anchoring their analysis of “negligent transmission” in the contours of the complained of activity,[81] and expressly rejecting an over-generalized, isolated reading of the postal exception’s terminology:

If considered in isolation, the phrase “negligent transmission” could embrace a wide range of negligent acts committed by the Postal Service in the course of delivering mail, including the creation of slip-and-fall hazards from leaving packets and parcels on the porch of a residence [under Webster’s Third New International Dictionary (1971)]. . . . The definition of words in isolation, however, is not necessarily controlling in statutory construction.[82]

Though the majority in Konan cited Dolan seven times in their decision,[83] there is a fundamental disconnect between the treatment of the postal exception in Konan and in Dolan. While the majority in Dolan also engaged with a dictionary in their exploration of the scope of the postal exception,[84] they did not solely rely on dictionaries.[85] Instead, they kept the level of generality of the question low enough that they could anchor the scope of the opinion in the particular facts.[86] The application of a lower level of generality was not only apparent in the official opinion, but also in the Justices’ questioning in oral argumentation.[87]

The Supreme Court applied a lower level of generality during their questioning in oral arguments during Dolan v. USPS. In doing so, while they still engaged with questions of textual interpretation, the Dolan Court primarily focused on the particularities of the complained of tort and analogous considerations.[88] For instance, Justice Breyer expressed skepticism as to whether the text of the postal exception alone could be dispositive in analyzing whether the complained of actions of postal workers were immunized, stating that if he found the text to be “perfectly ambiguous,” he would “look to the purpose [of the statute].”[89] Building on this, he explicitly asked the Government why the purpose of the statute would be to immunize them from injury claims arising out of them “swinging the package around.”[90]

As we compare the Dolan approach to that proffered in Konan, it is important to note that this level of generality was not necessitated by the question presented. The question presented in Dolan simply asked whether the postal exception covered “claim[s] for personal injury caused by the negligence of a [USPS] employee while delivering mail.”[91] In form and generality, that is similar to the question presented in Konan: whether the government is immunized for claims arising out of the actions of USPS employees who “intentionally did not deliver [mail] to a designated address.”[92]

B. USPS v. Konan Oral Arguments 

1. The Overall Trend of a High Level of Generality and Commitment to Textualism

During oral arguments, the Justices, for the most part, conceptualized the facts to which they were applying the text of the postal exception through a very high level of generality. Instead of investigating the ways in which the postal exception interplayed with the unique facts of the case, as they did in Dolan, the Court seemed more interested in the general concept of intentional torts. Questioning the counsel for the Respondent, Ms. Anand, Justice Kavanaugh described the postal exception caselaw as a “general rule . . . that would apply across the board” rather a “case-by-case determination.”[93] This broadening of the perspective of the alleged conduct away from the independent facts of the case, is a symptom of a higher level of generality, which in and of itself will grant textualist interpretations more discretion as there will be less anchoring factors.

Most of the Justices engaged with this oral argument through the lens of there being two potential definitions of these words: “loss” and “miscarriage.”  One that was narrower and did not encompass the complained of activity and one that was broader and did. They treated it like a conversation as to what definition was more accurate and the implication of either definition on future litigation. In other words, the analysis began and ended with the proper definition of the terms “miscarriage” and “loss,” not necessarily how the definitions of these terms interacted with the facts at issue. [94]

Though this line of questioning was not limited to definitions found in dictionaries, their core was still textual rather than practical. For example, Justice Kagan questioned counsel for the government, Mr. Liu, about how much the terms “miscarriage,” “loss,” and “negligent transmission” can reasonably be understood to overlap without losing their independent meaning and what actor-perspective these three terms contained.[95]

While these questions were all important, and reflective of the parties’ briefs, the extent of their prevalence in the Justices’ questioning was surprising, especially when compared to the prior treatment of questions arising from the postal exception. However, not all of the Justices approached this case through such a high level of generality.

2. Justice Jackson’s Alternative Approach

While Justice Jackson also engaged in textual analysis during oral arguments, she pivoted slightly from the rest of the Justices, asking the question that textualism obscures: what actually is the scope of the postal exception, and more importantly, do Konan’s accusations meet that scope? In doing so, she altered the perspective of this case by deliberately bringing the claims of the case into oral arguments. Addressing Mr. Liu, Justice Jackson stated that even “if I accept that textual reading” to the full extent proffered by the Government, “I don’t understand why all of Ms. Konan’s claims . . . would be immunized under that exception” especially as “only potentially one of which it seems to me even relates to the failure of her mail to arrive as the gravamen of her claim.”[96] Justice Jackson suggested that Konan’s “claims . . . really aren’t about the loss of mail . . . [s]o they’re not key to the failure of her mail to arrive.”[97]

Justice Jackson’s focus on Konan’s actual claims lowered the level of generality, at least temporarily, and forced counsel for the government to answer how their argument directly applied to the conduct in Konan’s complaint. This was most pronounced in the discussion of Ms. Konan’s Intentional Infliction of Emotional Distress (IIED) claim. Not only did Justice Jackson express her skepticism regarding the connection between the claim’s cause of action and the postal exception, but she also wove the relevant cause of action into her hypothetical.[98] Justice Jackson posed to the government a hypothetical that involved another IIED claim with a different factual set and asked whether or not the Government would argue that the postal exception would apply to that conduct as well:

So let’s say we have a mother who regularly writes her son who’s in the military, and a postal employee maliciously, intentionally, and repeatedly returns her mail as undeliverable and stamps Deceased on it. Could she sue for intentional infliction of emotional distress under those circumstances? . . . [I]t’s not really about what happened to the mail.[99]

Though this hypothetical mirrored the other Justices by asking for implications of potential holdings, it differed by centering the claims at issue. For example, Justice Alito asked Mr. Lui if the Court accepted the Respondent’s narrower definition of “loss” and “miscarriage,” asking if the USPS could be sued for late delivery of Christmas cards so long as the plaintiff alleged suspected intentionality.[100] Both forms of questioning hold significance for future interpretations of potential liability resulting from claims of intentional misconduct under the postal exception. However, they evidence differing analytical foci on this issue. By centering the facts of the case, Justice Jackson’s exploration stayed truer to the issue at hand but did not focus the implications that were more removed from the case at hand created by different textual definitions. Thus, Justice Jackson’s questioning during oral arguments demonstrated not only a pathway of case-conscience textual interpretation, but also revealed diversity of interpretation method on the bench.

3. How the Justices’ Treatment of the Level of Generality of Konan’s Claims Differs from Their Approach in Dolan

Despite not being on the Court when Dolan was heard, Justice Jackson’s approach to oral arguments was the most consistent with that of the Dolan Court. Like the oral argument in USPS v. Konan, the Dolan Court inquired into the definition of relevant terminology and considerations of the scope of potential liability availment of the USPS; however, the Dolan Court also focused considerably on the factual characteristics of a slip-and-fall case.[101] This distinction is best demonstrated by the difference in the questioning that Chief Justice Roberts proffered in Konan and Dolan.[102] In Konan, his sole question asked why the Government was incorporating “malfeasance” into its textual definition of “loss.”[103] On the other hand, in Dolan, Chief Justice Roberts directly responded to the cause of action at issue at multiple different points.[104] For example, he offered a hypothetical where a postal employee carelessly tossed a package in a way which could cause a slip-and-fall and distinguished the potential liability arising out of any damage to the package from any damage caused by a slip-and-fall.[105] Though this example is limited to the Chief Justice, the dichotomy of abstraction that is demonstrated reflects the overall approaches of the oral argument in both cases.

The gap between the approach in the Konan and Dolan Courts is evidence of the Roberts Court’s increasing reliance on textualism and emphasizes the continued relevance of Justice Kagan’s famous 2015 statement “we are all textualists now.”[106] In Konan, the majority of the Court evaluated the dimensions of the postal exception through definitions and abstractions which elevated the centrality of the text and its implications. This is demonstrated through their focus on whether “malfeasance” and “intentionality” fit within the textual definitions without much direct engagement with whether the unique factual circumstances of Ms. Konan’s case or her causes of action. Though the question of coverage of intentional acts was a major part of the question presented to the Court, the Court’s silence on the facts of the case and causes of action created an abstraction which further narrowed the analysis to a textualist framework. This abstraction differed significantly from the oral argument approach in Dolan in which Chief Justice Roberts’ hypotheticals and clarifying questions shared a direct link with the activity in question—negligently leaving mail in a place that caused a slip-and-fall.[107]

C. The Relationship Between Textualism, Dictionaries, and Shifting Levels of Generality

USPS v. Konan is further evidence of the Roberts Court’s increasing reliance on textualism. One of the indicators of the rise in textualism in the Supreme Court is its increased reliance on dictionaries.[108] This reliance on dictionaries is a relatively new phenomenon, as prior to the 1980s, such usage was “virtually non-existent.”[109] However, the increased reliance on dictionaries can cause problems. For example, Professors Kevin Tobia, Brian G. Slocum, and Victoria Nourse critiqued traditional textualism’s usage of dictionaries “without proper consideration” of the important contextual factors of a case.[110] Additionally, former Supreme Court Justice Anthony Kennedy echoed such fears of over-reliance on dictionaries by explicitly refusing to simply defer to an unmitigated dictionary definition of “negligent transmission” in his Dolan majority opinion.[111] He stated that such deference was inadequate as it was unable to respond to important contextual and procedural considerations relevant to the case presented.[112]

Despite these concerns of an over-emphasis on dictionaries in statutory interpretation, dictionaries feature heavily in today’s Supreme Court jurisprudence. In Konan, both the Petitioners and the Respondent relied heavily upon competing dictionary definitions of the terms “miscarriage” and “loss.”[113] While the Justices themselves did not quote dictionaries during oral arguments, for the most part, they framed and guided their questioning in a manner that would further explore that type of textual reasoning.[114]

While judges, lawyers, and scholars can debate about the merits of textualism, in order for the Judiciary to sufficiently perform their function of judicial review, they do actually need to base their decision on a reasonable reading of the text of a statute. However, reasonable, on its own, does not tell us much. This is because the use of language is a dynamic social enterprise that is necessitated upon unspoken assumptions. To ask whether something is reasonable or not, requires a factual situation to which that question can be applied. How that factual situation is characterized can be dispositive to whether or not it is considered reasonable. To transform a situation into reflective language to which interpretive methods such as textualism can be applied, requires subjective, and often unspoken, decisions to be made. These include what facts are highlighted, and at what level of generality those facts are conceptualized. For example, the majority only included the fact that race was a factor in Konan’s allegations in a footnote,[115] whereas the dissent included it in its opening paragraph.[116]

The disconnect between the claimed neutrality of textualism and the subjective, unspoken, reality of shifting levels of generality determinations is what makes the relationship between the two dangerous. Textualism’s mask of objectivity can sanitize subjective value and policy judgements made on the bench. Furthermore, it can distract from precedential inconsistencies by making it appear as though the text, and the Justices’ chosen dictionaries, obligated certain holdings and hiding dispositive choices regarding the level of generality in framing the issues made in these cases.

V. Conclusion

USPS v. Konan is far from the first case to involve a shift in the applied levels of generality to unspoken assumptions regarding the facts of the case. However, there are several factors that make this shifting of the level of generality unique and worthy of study. First, we have another case under the Roberts Court that engaged with the postal exception’s breadth and limitations: Dolan v. USPS. By analyzing USPS v. Konan next to Dolan, a shift in the level of generality applied that would traditionally not be as obvious comes into focus.

Second, not only was Dolan not overruled, but the majority found their current Konan Opinion to be consistent with the Dolan precedent. On its face, this creates an inconsistency regarding the scope of these three terms. This is because negligence in the physical delivery of mail that creates a physical injury to a person is outside of the scope of the postal exception’s “negligent transmission,” but an emotional injury caused by an intentional campaign of racial harassment can quite possibly be covered by both “loss” and “miscarriage.” That is a glaring inconsistency between the two cases.

The fact that this inconsistency, caused by the shifting the level of generality, remains not only unresolved, but unmentioned, leads to questions as to how the postal exception will be applied in future cases. Was this merely a silent shift? Such a shift would render Dolan nearly obsolete for purposes of analogization because, as Justice Sotomayor warned, “loss” and “miscarriage” are now so broad that they would likely encompass any act, that has some engagement with the mail, not explicitly held to be outside the postal exception’s limitations by prior precedent. Or is what is occurring here the more dangerous option: there is no quasi-overruling of the precedent of Dolan because the Court is not obligated to apply the same level of generality to their underlying assumptions when interpreting a statute. Not only does this create significant reliance and uniformity risks, but it also gives room for one of the most searing critiques of textualism to actualize: that it allows for courts to make dispositive alterations to the applicable level of generality, based on subjective reasons, while superficially claiming to adhere to a neutral and objective reading of the text.

[1] The Federal Tort Claims Act (FTCA): A Legal Overview, Congress.gov, https://www.congress.gov/crs-product/R45732 (last visited Mar. 30, 2026).

[2] Id.

[3] Id.

[4] Note, Recovering The Lost Meaning of The Federal Tort Claims Act’s “Discretionary Function Exception,” 138 Harv. L. Rev. 654, 658 (2024).

[5] 28 U.S.C. § 1346(b)(1).

[6] The Federal Tort Claims Act (FTCA): A Legal Overview, supra note 1.

[7] Brief for the Petitioners at 4–5, USPS v. Konan, 146 S. Ct. 736 (2026) (No. 24-351) (quoting Molzof v. United States, 502 U.S. 301, 311 (1992)).

[8] 28 U.S.C. § 2680(b).

[9] Brief for the Petitioners, supra note 7, at 5 (quoting Dolan v. USPS, 546 U.S. 481, 489 (2006)).

[10] Brief for the Petitioner, supra note 7, at 27 (quoting Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994)).

[11] Mark Seidenfeld, Textualism’s Theoretical Bankruptcy and Its Implication for Statutory Interpretation, 100 B.U. L. Rev. 1817, 1819 (2020).

[12] John Calhoun, Measuring the Fortress: Explaining Trends in Supreme Court and Circuit Court Dictionary Use, 124 Yale L.J. 484, 513 (2014).

[13] Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 23–25 (1997).

[14] See Kevin Tobia, We’re Not All Textualists Now, 78 N.Y.U. Ann. Surv. of Am. L. 243, 249 (2023).

[15] Seidenfeld, supra note 11, at 1837.

[16] Id. at 1822–23.

[17] In expressing the importance of ensuring the scope of statutory analysis goes beyond the mere text, Judge Learned Hand famously wrote: “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2nd Cir. 1945).

[18] Scalia, supra note 13, at 27–28 (arguing that incorporation of long-standing judicial interpretational precedents, such as the rule of lenity, are problematic to an “honest textualist”).

[19] Girardeau A. Spann, Constitutionalization, 49 St. Louis U. L.J. 709, 711–14 (2005).

[20] Id. at 729–31. While Spann’s article focuses on the exposing the use of shifting the level of generality in terms of constitutional analysis, the technique is equally applicable to statutory interpretation by the Supreme Court as it is constitutional interpretation.

[21] Id. at 735.

[22] Lawrence v. Texas, 539 U.S. 558, 562 (2003); Bowers v. Hardwick, 478 U.S. 186, 190 (1986).

[23] Spann, supra note 19, at 735.

[24] Id.

[25] Lawrence, 539 U.S. at 578.

[26] Spann, supra note 19, at 735.

[27] Id. at 723 (describing that manipulations in tacit assumptions can become dispositive to case outcomes).

[28] Id. at 729, 737.

[29] See infra, Part IV.

[30] Id.

[31] USPS v. Konan, 146 S. Ct. 736, 740 (2026).

[32] Fed. R. Civ. P. 12(b)(6).

[33] Ashcroft v. Iqbal, 556 U.S. 662, 669 (2009).

[34] Brief for the Petitioners, supra note 7, at 8, 43.

[35] Brief for Respondent at 2–3, USPS v. Konan, 146 S. Ct. 736 (2026) (No. 24-351).

[36] Brief for the Petitioners, supra note 7, at 7 (internal quotations and citation omitted).

[37] Brief for Respondent, supra note 35, at 3.

[38] Id. at 47–48.

[39] Id.at 4.

[40] Id. at 5.

[41] Brief for the Petitioners, supra note 7, at 30.

[42] Id.

[43] Brief for Respondent, supra note 35, at 25.

[44] Brief for the Petitioners, supra note 7, at 13–14.

[45] Id. at 14 (quoting Dolan v. USPS, 546 U.S. 481, 487 (2006)).

[46] Id. at 13.

[47] Id. at 14–15.

[48] Id. at 17–18.

[49] Brief for Respondent, supra note 35, at 15.

[50] Id. at 15 (quoting Dolan, 546 U.S. at 487).

[51] Id. at 18, 20.

[52] Id. at 19.

[53] Id. at 15.

[54] Id. at 7, 21, 37–39.

[55] Brief for the Petitioners, supra note 7, at 9.

[56] Id.

[57] Id.

[58] Id. at 9–10.

[59] Brief for Respondent, supra note 35, at 6 (citing Konan v. USPS, 96 F.4th 799, 803 (5th Cir. 2024), rev’d, 146 S. Ct. 736 (2026)).

[60] Konan, 96 F.4th at 802, rev’d, 146 S. Ct. 736 (2026).

[61] Petition for a Writ of Certiorari at 10–11, USPS v. Konan, 146 S. Ct. 736 (2026) (No. 24-351).

[62] To evidence a Circuit split, the Government cited Levasseur v. USPS, 543 F.3d 23 (1st Cir. 2008) (holding that the intentional “theft or concealment of [political] mail” by a USPS employee fell within the postal exception) and Marine Ins. Co. v. United States, 378 F.2d 812 (2nd Cir. 1967) (holding that a package stolen by a USPS employee was covered by the postal exception). Petition for a Writ of Certiorari, supra note 61, at 17–19.

[63] Cert. Granted, Konan, 146 S. Ct. 736 (No. 24-351).

[64] Konan, 146 S. Ct. at 746.

[65] Id. at 743–744; see also id. at 751–54 (Sotomayor, J., dissenting) (arguing that the majority “cherry-picked” sources to support their broad interpretation of the terms “loss” and “miscarriage,” particularly in respect to random newspaper clippings).

[66] Id. at 743 (majority opinion).

[67] Id. at 744.

[68] Id. at 746.

[69] Even if one of Konan’s claims was able to survive, Justice Thomas cautioned that there may still be a problem with the preservation of the claim. See id. at 746.

[70] Whether or not Konan’s claims result from the “intentional nondelivery of mail” are themselves dependent upon the assumptions underpinning the framing of her claims, and the level of generality applied to those assumptions. The higher the level of generality that is applied, the more likely it will be held to be resulting from the “intentional nondelivery of mail.” This is because at higher levels of generality, less attention will be paid to the distinct contours that could be deployed to argue that the claims do not stem from intentional nondelivery.

[71] Since the terms “miscarriage” and “loss” have been construed so broadly, it will be more difficult to find any action committed by postal employees doesn’t trigger either of these terms, even when the individual action is conceptualized at a lower level of generality. See Konan, 146 S. Ct. at 753 (Sotomayor, J., dissenting) (saying that the majority interpreted “loss” to cover such an expansive level that it has rendered “miscarriage” and “negligent transmission” as “no more than ‘misleading surplusage’”) (internal citations omitted). Justice Sotomayor also said this will result in the postal exception immunizing “all intentional and non-intentional actions [taken] in the delivery of mail (apart from auto-accidents and slip-and-falls [which prior precedent] requires.” Id. at 753.

[72] See id. at 742–46.

[73] 546 U.S. 481 (2006).

[74] For more information on the Dolan Court’s differing approach, see discussion infra Section IV.1.

[75] Konan, 146 S. Ct. at 754 (Sotomayor, J., dissenting).

[76] Id. at 747–54.

[77] Id. at 753.

[78] Even the famous textualist Justice Scalia, as well as Chief Justice Roberts—who was also part of the Konan majority—signed on to the Dolan majority opinion. Justice Thomas was the sole dissenter. Dolan, 546 U.S. at 482, 492; Konan, 146 S. Ct. at 739.

[79] Dolan, 546 U.S. at 483.

[80] Id. at 486.

[81] See id. at 488.

[82] Id. at 486.

[83] Konan, 146 S. Ct. at 740, 742, 745–46.

[84] Dolan, 546 U.S. at 486.

[85] See id. at 486–90 (also examining the nature of slip-and-fall claims, interpretive limitations imposed by past precedent, legislative intent, and comparing the postal exception to other FTCA exceptions whose immunizations are “paint[ed] with a far broader brush”).

[86] See id. at 487 (stating how it would be “odd” to interpret “‘negligent transmission’ far more broadly to include injuries like those alleged here”).

[87] In the Dolan v. USPS oral argument, the Justices anchored their questioning of whether the term “negligent transmission” included personal injury claims in the facts of the alleged conduct as opposed to primarily in general contentions about the unanchored scope of “negligent transmission.” This anchoring within the contours of the facts at issue is indicative of a lower level of generality. See Transcript of Oral Argument at 9, Dolan, 546 U.S. 481 (No. 04-848) [hereinafter Dolan Transcript of Oral Argument] (Justice Scalia articulating a potential distinction as to whether “dumping [mail] on the porch” would be immunized by “negligent transmission” if the resulting claim was the “homeowner trip[ping] over it” versus their mail getting destroyed by the rain); id. at 24 (Justice Kennedy offering a hypothetical of potential liability arising from a postal employee leaving a crate of mail on plaintiff’s property which they later tripped over); id. at 32 (Justice Scalia pushing back on whether the alleged conduct was actually “unique to the mail” by stating that “leaving something on the porch where somebody can trip on it isn’t unique to the mail”); id. at 38–39 (Justice Ginsburg asking counsel for the government “how many “slip-and-fall, trip-over-mail. . . claims are filed [against the USPS]” annually); id. at 43–44 (Chief Justice Roberts asking whether “negligent transmission” would immunize a personal injury claim if, instead of tripping on a package thrown onto the porch, the homeowner was hit by that package thrown onto the porch; and if there was even a substantive difference between the harm of the two).

[88] See generally id.

[89] Id. at 30.

[90] Id. at 29–30.

[91] Cert. Granted, Dolan, 546 U.S. 481 (No. 04-848).

[92] Cert. Granted, supra note 63 (granting cert in Konan).

[93] Transcript of Oral Argument at 48, USPS v. Konan, 146 S. Ct. 736 (2026) (No. 24-351) [hereinafter Konan Transcript of Oral Argument].

[94] See id. at 7–8 (Justice Gorsuch asking Mr. Liu if including general “intentional actions” into the definition of “loss” and “miscarriage” would render “negligent transmission” to be “surplusage”); id. at 14 (Justice Sotomayor asking Mr. Liu if his definition of “miscarriage” would be broad enough to exempt intentional and partisan non-delivery of mail-in ballots from FTCA coverage); see also id. 53–54 (Justice Alito asking Ms. Anand how her definition of “loss” which does not include “intentional conduct” comports with the acceptable language of submitting an insurance “claim [for] the loss of my car even though I know [both where my car is and that the vandalism creating the loss was done intentionally]”); id. 62–63 (Justice Alito asking Ms. Anand to respond to concerns that finding that Respondent’s claims were not foreclosed by the postal exception would create a situation where the courts would be inundated with allegations of intentional non-delivery from people simply “unhappy with the delivery of mail”).

[95] Id. at 19–22.

[96] Id. 23–24.

[97] Id. at 24.

[98] Id. at 38–40.

[99] Id. Mr. Lui did not give a complete answer as to whether the postal exception would immunize this hypothetical. However, after attempting to distinguish the two fact patterns, he did indicate that even though the claim itself is not focused directly on the delivery of mail, the fact that the IIED claim resulted from the delivery of mail was an important consideration. Id.

[100] Id. at 29–30.

[101] Compare Dolan Transcript of Oral Argument, supra note 87, at 39 (inquiring into rough estimates for the average yearly general slip-and-fall claims the USPS faces as well as very issue-specific “trip-over-mail” slip-and-fall cases they face); with Konan Transcript of Oral Argument, supra note 93 (where the Justices did not ask for estimates as to how many claims of intentional torts born from campaigns of racial harassment the USPS faces per year).

[102] Chief Justice Roberts was the Chief Justice in both cases.

[103] Konan Transcript of Oral Argument, supra note 93, at 6.

[104] Dolan Transcript of Oral Argument, supra note 87, at 7–8, 20.

[105] Id. at 7–8.

[106] Harvard Law School, The 2015 Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes, at 08:28–08:31 (YouTube, Nov. 25, 2015), https://www.youtube.com/watch?v=dpEtszFT0Tg (responding to a question on the ways in which Justice Scalia shaped the Supreme Court’s approach to statutory interpretation). While Justice Kagan walked this statement back in her dissenting opinion in West Virginia v. EPA, this quote has had—and continues to bear—significant influence on the scholarly discussion of textualism. See West Virginia v. EPA, 597 U.S. 697, 779–80 (2022); see also Kevin Tobia, Brian G. Slocum & Victoria Nourse, Progressive Textualism, 110 Geo. L.J. 1437, 1439 (2022) (claiming that despite Justice Kagan’s recission of her statement, the data shows that “[b]etween 2005 and 2017, the Roberts Court relied on ‘text’ or ‘plain meaning’ arguments in almost fifty percent of majority or plurality opinions”).

[107] Dolan v. USPS, 546 U.S. 481, 483 (2006). It is important to note that the question presented in Dolan only referred to the factual circumstances as a “claim for personal injury.” Cert. Granted, supra note 91 (granting cert in Dolan). The question presented did not obligate the Justices to focus on personal injury claims resulting from slip-and-falls and tripping hazards, which mirrored the facts of the allegation at issue. They could have taken a broad view of “personal injury,” but they did not. See Dolan Transcript of Oral Argument, supra note 87, at 9, 24, 32, 38–39, 43–44.Thus, it cannot be asserted that the reasoning for the differing levels of engagement with the factual circumstances that gave rise to the case were due to a differing presentation of the question at issue.

[108] See Calhoun, supra note 12, at 486.

[109] James J. Brundey & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 483, 574 (2013).

[110] See Tobia, Slocum & Nourse, supra note 106, at 1463–64. The Professors did not say that overlooking context is a necessary element in all textualist analyses; they observed that traditional textualist analyses tend to have such problems. Id.

[111] Dolan, 546 U.S. at 486.

[112] Id.

[113] Brief for the Petitioners, supra note 7, at 10, 14–17, 19, 30, 32, 38–40, 42; Brief for Respondent, supra note 35, at 15–16, 18–19, 25–27, 29–31, 34; Konan Transcript of Oral Argument, supra note 93, at 4, 12, 18, 60, 68.

[114] Konan Transcript of Oral Argument, supra note 93.

[115] USPS v. Konan, 146 S. Ct. 736, 741 (2026).

[116] Id. at 747 (Sotomayor, J., dissenting).