A Black landlord in Texas says that for two years, postal workers refused to deliver mail to her properties because she rented rooms to white tenants. 

Lebene Konan owns two rental properties in Euless, Texas, and according to her complaint in USPS v. Konan, the mail carrier servicing her rental properties simply stopped doing his job. 

For nearly three months, the United States Postal Service stopped delivering mail altogether. She wasn’t getting her mail, and neither were her tenants. Her mail carrier took it upon himself to decide which pieces of mail were delivered and which weren’t. 

He also marked important documents addressed to both Konan and her tenants as “undeliverable” and returned them to sender. At one point, he changed the mailbox lock so that only one tenant could access it. (And yes, that tenant was white.) 

In the age of instant gratification via text message and email, the importance of mail seems to be dwindling. But when a mail carrier refuses to deliver mail, they’re potentially deciding who gets access to paychecks, credit card statements, court notices, government benefits, and—critically, given the maniac in the White House—ballot and election information. 

Konan says the reason for this deplorable behavior was explicit: The postal workers objected to a Black woman owning property and renting said property to white tenants. 

So she filed a lawsuit against the United States Postal Service seeking money damages. 

And the Supreme Court’s response was simple: tough luck. The USPS doesn’t have to pay you a dime. 

Racial discrimination is still illegal … officially

If that seems grossly unfair to you, that’s because it is. If the USPS refuses to deliver your mail because you’re Black, then you should be able to sue the USPS for discrimination and get financially compensated for emotional distress and any lost income the USPS’s deplorable behavior caused. 

But unfortunately for Konan, the government generally enjoys something called sovereign immunity. Sovereign immunity is the rule that says the government can’t be sued unless the government agrees to be sued—which is a very convenient system if you happen to be the government.

Sometimes, however, the federal government throws us rubes a bone and allows lawsuits against them for certain types of misconduct thus waiving sovereign immunity. One such law is the Federal Tort Claims Act (FTCA). The FTCA allows people to recover damages for torts. (A tort is a negligent or intentionally wrongful act that causes harm to another person, their property, or reputation.) Through the FTCA, Congress has agreed that when federal employees cause harm on the job, the government can be forced to pay. 

But that didn’t matter in Konan’s case, because the FTCA includes an exception for any “claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” And in a 5-4 decision authored by Justice Clarence Thomas, the Supreme Court ruled that this exception includes the intentional withholding of mail, too. 

Even deliberate refusal to deliver mail triggers sovereign immunity under Thomas’s strained interpretation of the law. 

Apparently you can intentionally “lose” mail. When was the last time you intentionally lost anything? 

The Supreme Court’s ruling doesn’t endorse the racist conduct. It’s still against the law to discriminate against Black people—officially, at least. 

But if there’s no right to obtain damages when a racist postal worker refuses to deliver mail because he’s big mad that a Black woman owns a couple pieces of property, then the postal service has no financial incentives to stop racist employees from tossing Black people’s mail into a river.

The vanishing right to damages

Konan sits alongside a series of recent Supreme Court decisions narrowing the availability of damages when federal officials violate individual rights. 

In 2017’s Ziglar v. Abbasi, the Court refused to allow damages claims brought by Muslim men detained after the 9/11 terror attacks who alleged they were held in abusive conditions because of their religion and national origin.

Three years later, in Hernandez v. Mesa, the Court refused to allow a damages suit against a border patrol agent who shot and killed a Mexican teenager who was on the Mexico side of the border. The majority pointed to national security and foreign relations concerns when it declined to recognize a remedy.

(Read: Trump’s Racism Carries No Consequences—And That’s Scary)

And in 2022’s Egbert v. Boule, the Court again rejected a damages claim after a border patrol agent allegedly used excessive force against a U.S. citizen—on the citizen’s own property—and retaliated against him for complaining.

These cases involved different doctrines and different fact patterns. But they all add up to one truth: There aren’t a lot of ways to hold the federal government or its employees financially accountable for misconduct. And more doors slam shut every time the Supreme Court drops a ruling like Konan into the pile.

Money damages are a deterrent 

Civil rights laws are much easier to ignore when violating them is free. Money damages are one of the few ways that can reliably get a government’s attention. 

Public institutions rarely decide to behave better because they’ve experienced a sudden burst of ethical clarity. Large organizations respond when they have to write large checks and then explain to taxpayers why they’re spending millions paying out settlements rather than implementing reforms to make sure federal employees treat the law as more than just a suggestion.

Research on police misconduct settlements bears this out. A national database of settlements published by the NAACP Legal Defense Fund has identified hundreds of cases where payouts were followed by policy changes inside police departments. 

When the availability of money damages disappears, accountability starts to wane. Enforcement becomes dependent on internal disciplinary mechanisms within federal agencies or on prosecutorial discretion. Oftentimes, the institution accused of wrongdoing simply investigates itself to decide whether anything bad actually happened. (kind of like what the DOJ is doing right now with the Epstein files.)

The Supreme Court’s decision in Konan did not legalize discrimination. But if federal employees can intentionally withhold someone’s mail and the federal government never has to pay damages for it, then incentives to behave lawfully disappear. The incentives to deliver mail to everyone, irrespective of their skin color or property ownership status, shrink.

The law may say what they can’t do. 

But the budget tells them what they can get away with.