Over the past two days, Supreme Court nominee Neil Gorsuch has endured speeches and answered questions from Senate Democrats. One case in particular caught the Democrats’ attention, and it seems like a doozy.
“You rarely seem to find in favor of the little guy,” Hawaii Senator Mazie Hirono told the nominee. She specifically mentioned TransAm Trucking, Inc. v. Admin. Review Brd., a case in which Gorsuch sided with the company over an employee who was fired for operating a truck in a way expressly forbidden by his employer.
Alphonse Maddin broke his company’s orders. But the circumstances make it seem like he was in the right. One cold January night, after missing his fuel stop, Maddin was almost out of gas, so he pulled to the side of the highway. When he tried to get back on the highway, he could not, because the brakes on the trailer had frozen and locked up.
Maddin called the TransAm dispatcher to report the frozen brakes, and was told that a repair truck would be sent to him. While waiting, the trucker realized his heat wasn’t working. After a brief nap, he realized that his torso was numb.
On a second call to the dispatcher, Maddin was told to “hang in there.” Half an hour later, he broke the company’s orders, unhitched the trailer from the truck, and called his supervisor to tell him that he was seeking help. The supervisor told him not to leave the trailer, but he drove off anyway.
When the repair truck arrived fifteen minutes later, Maddin drove back to meet it. A few days later, TransAm fired Maddin for abandoning the trailer. In a complaint with OSHA (the Labor Department’s Occupational Safety and Health Administration), Maddin claimed that TransAm, in firing him, violated the whistleblower protections of the Surface Transportation Assistance Act (STAA).
When the case reached the 10th Circuit Court of Appeals, the court sided with Maddin and against TransAm. But Gorsuch dissented. He pointed out that the STAA did not prevent a company from firing an employee who decided to operate his vehicle. The law forbade the firing of an employee for “refusing to operate a vehicle.”
Gorsuch wrote that the “statute only forbids employers from firing employees who ‘refuse to operate a vehicle’ out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was for help.”
“The trucker was fired only after he declined the statutorily protection option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not,” Gorsuch argued. “And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”
His hands were tied. “Maybe the Department [of Labor] would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write on in Congress’s place.”
Democrats attacked Gorsuch, suggesting he preferred to leave a frozen trucker out in the cold. But that wasn’t his opinion at all.
It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.
In the Senate Judiciary Hearing on Tuesday, Louisiana Senator John Neely Kennedy said this dissent made Gorsuch “about as popular as Cholera.” But Kennedy also pointed to another dissent the judge issued, just last year.
“Often enough the law can be an ass,” Gorsuch wrote, quoting Charles Dickens’ famous classic Oliver Twist. “And there’s little we judges can do about it, for it is or should be emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”
In this particular case, Gorsuch was dissenting from a decision he disliked — the court ruled that the police were right to arrest a 13-year-old boy for fake burping in class.
“So it is, I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands, and in that I see the best of our profession and much to admire,” the judge wrote. “It’s only that, in this particular case, I don’t believe the law happens to be quite as much of an ass as they do. And I respectfully dissent.”
Kennedy asked Gorsuch point blank, “Is that what happened in TransAm?”
The nominee responded meekly, “That’s who I am, senator.”
Gorsuch is so dedicated to applying — as opposed to making — the law, that he will dissent when a court defends a frozen trucker. But he doesn’t want to make the law “an ass,” it just is.
North Carolina Senator Thom Tillis praised Gorsuch for “making me do my job,” to make the law better. He referenced a case involving autism protections, where Gorsuch ruled that the law did not allow children with autism to choose different schools. In response, Tillis led North Carolina in creating the law that would have helped the autistic kid in the case.
It may be frustrating to wait for Congress — or state legislatures — to pass a law in order to make sure the system is just. But that’s the way the Constitution says our system should work, and like Tillis said, when judges interpret the law in unpopular ways, it can spur legislative action.
That’s originalism at work.
— Tyler O'Neil (@Tyler2ONeil) March 22, 2017