Why the “Frozen Trucker” Case Makes Me Like Judge Gorsuch More

Gorsuch's ruling in the controversial case shows that he rules based on the law, not his own feelings.

Supreme Court Justice nominee Neil Gorsuch listens as he is asked a question by Sen. Mazie Hirono, D-Hawaii, on Capitol Hill in Washington, Wednesday, March 22, 2017, during his confirmation hearing before the Senate Judiciary Committee.

By John Murdock Published on March 24, 2017

Judge Neil Gorsuch seems headed for the Supreme Court, but many Democrats will still vote against him. Those who do will likely cite the “frozen trucker” case as one of their main reasons why. Gorsuch, they will say, is cold and heartless. He is a friend of corporations and an enemy of the little guy. I looked at the matter and instead saw a friend to representative democracy and the Constitution.

A Frustrating Case

Now, the case does have some rather infuriating facts. A truck driver named Alphonse Maddin, his rig low on fuel, his trailer brakes locked up and cab heater broken, is told by his company to sit tight on the side of the interstate in sub-zero weather. He does for several hours before finally unhitching the trailer and driving off briefly to refuel and warm a body that had literally gone numb. His employer, Ebenezer Scrooge, I mean TransAm Trucking, fired him.

Sen. Al Franken seems to think if you don’t like the outcome, you should ignore the law.

Senator Al Franken had one of the Gorsuch confirmation hearing’s better lines. The former Saturday Night Live writer deadpanned, “I had a career in identifying absurdity, and I know it when I see it.” This came after Franken opined, “When using the plain meaning rule would create an absurd result, courts should depart from the plain meaning.” In other words, if you really do not like the outcome that a law produces, ignore the law. Firing the trucker was “absurd” and so Franken believed that Gorsuch should have found a way to also call it illegal.

Certainly, getting fired under those conditions sounds pretty ridiculous. What I found when I read the full decision and Gorsuch’s dissent was not so crazy, though.

A Rule’s Disputed Meaning

Based on Franken’s depiction, I expected that the majority had invoked some sort of “absurdity” or “necessity” exception. They had not. What they had done was to go beyond what either side had argued in order to call a statute “ambiguous” that most of us would not find ambiguous at all.

Both sides disagreed about the meaning of the rule in question.

The question before the appeals court was not whether TransAm Trucking did a good thing or a bad thing when it fired Mr. Maddin. The question was whether a narrow provision of federal law should apply. 49 U.S.C. § 31105(a)(1)(B)(ii) — say that five times fast — makes it illegal to fire a trucker who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” Fair enough, Congress decided it was worthwhile to protect truckers from getting fired if they refused to get behind the wheel of an unsafe truck.

Both sides argued that the meaning of the statute was clear. They disagreed about just what that meaning was, though. The trucking company said that the clause only applied to one who refused to drive, not to a person who drove when he had been instructed not to drive. In contrast, the Department of Labor board that first found for Mr. Maddin read the clause differently. They claimed it meant that an employee could not be fired if he had a safety motivated reason for doing whatever he did, whether that involved driving or not driving.

Gorsuch Refused to Bend the Law

The majority was unwilling to say that the Labor Department’s interpretation was plainly evident within the text of the statute. But there is a legal doctrine that gives extreme deference to a government agency when it interprets an “ambiguous” statute. The problem was that the Labor Department had not argued that the statute was ambiguous. Normally, courts limit themselves to what the parties put before them. Laughably, the court was able to point to nothing more than one footnote that mentioned the 1984 case Chevron v. NRDC from whence this deference in the face of ambiguity doctrine is derived. It did not seem to matter that the magic footnote was in the company’s brief and that it was actually used to argue that the statute was not ambiguous. No, there was justice to be done here, and so the normal processes would just have to take a back seat. 

The majority bent over backwards to bring about what it thought was a just result, despite the limited legal tools at its disposal.

In short, the majority bent over backwards to bring about what it thought was a just result, despite the limited legal tools at its disposal. Frankly, I am not shedding too many tears over TransAm Trucking having to dole out some back-pay to a guy they fired for trying to stay alive. Plus, the statute as effectively rewritten by the court still seemed rather reasonable. But, was it their job to rewrite the statute? That do the right thing attitude is the same mindset that can lead a judge to bend any text, even the Constitution, to get to a “just” outcome. These days, “justice” is making all sorts of demands on the Constitution that might have seemed rather odd to those who drafted and ratified it.

Judge Gorsuch is not a man without sympathy. As he noted in his dissent, “It might be fair to ask whether TransAm’s decision was a wise or kind one.” Let me translate: that is mild-mannered judge-speak for “you guys are jerks.” “But,” he continued, “it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”

That “do the right thing” attitude can lead a judge to dangerously bend any text, even the Constitution, to get to a “just” outcome. 

In the end, he concluded that the company had the better interpretation, and he would not bend a statute about refusing to operate a truck into one about operating a truck, even if in a safer way. Gorsuch based his decision on what Congress actually wrote and on what was actually argued before his court and in the lower tribunals — not on what could have been said but was not. “It is our job and work enough for the day,” Gorsuch concluded, “to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.”

Gorsuch is Committed to Facts, Not Feelings

The Tenth Circuit’s stretch of an obscure labor law will not make the judicial activism hall of fame. Nevertheless, I am glad to see Gorsuch refusing to play this game, if even at the minor league level. His restraint gives me hope that he will not do so when he puts on his big league uniform as one of the nine.

Bad facts and good intentions can make bad law.

Cases like that of Mr. Maddin may suggest that more things should be left to the flexibility of the common law, where judges rightly have greater freedom to adjust for extreme circumstances. (The trucker might yet have a legitimate common law tort claim or other causes of action against the company.) These factually hard cases, however, do not suggest that a clear statutory text should be ignored to get to a favored result. Bad facts and good intentions can make bad law.

I hope that Neil Gorsuch the person would stop and render aid on the highway. I hope that Neil Gorsuch the lawyer would represent a client like Mr. Maddin well. I hope that Neil Gorsuch the citizen would call Congress and suggest it amend the labor law to cover such situations. As a judge, though, I would prefer to have on the Supreme Court one who is willing to endure a frustrating but legally correct result over someone who takes it upon himself to right every wrong according his own moral compass. Neil Gorsuch appears to be just such a disciplined justice.

 

John Murdock is a professor at the Handong International Law School, a Christian institution training future American lawyers in South Korea.

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