Advisory Opinions The Immunity Episode
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Feb 26, 2026 A lively dive into immunity doctrines and recent Supreme Court rulings. They unpack a postal service immunity dispute that split along unexpected lines. The conversation contrasts judicial approaches to executive power and traces why conservatives often favor immunities. They also tackle qualified immunity tensions and realistic paths — and political roadblocks — for legislative reform.
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Two Axes Shape Supreme Court Behavior
- Supreme Court justices cluster on two axes: ideological (left-right) and institutionalist (willingness to preserve court norms).
- Sarah points out the four justices attending State of the Union were the court's most institutionalist members, sitting in seniority order.
Statutory Canons Decided Mail Immunity Case
- Postal Service v. Konan hinged on whether FTCA exceptions for 'loss' and 'miscarriage' include intentional nondelivery.
- Thomas read the words narrowly; Sotomayor and Gorsuch relied on FTCA's purpose to construe exceptions narrowly to allow suits for intentional misconduct.
Why Conservatives Now Favor Immunity Differently
- Historical judicial conservatism favored state and corporate defenses, but later conservative legal thought shifted toward libertarian skepticism of state power.
- David traces this shift to Reagan-era appointments and a trailing effect in judicial pools.
