As you might be able to tell from my last post, I like Judge Gorsuch. I’d never heard of him before his nomination, but I listened into a lot of his hearing, and quickly came to respect his philosophy of judicial integrity.[ref]That’s actually what was at the heart of my last post about his hearing.[/ref]
Earlier today, I had a Facebook friend castigating Gorsuch for the “frozen trucker case.” This refers to a dissent that Gorsuch wrote in 2016. According to a critical Slate article by Jed Shugerman, here are the basic facts of the case:
Alphonse Maddin was a truck driver for TransAm. Late on a January night in temperatures below zero, he discovered that his trailer’s brakes had locked up due to the cold weather. (The truck itself could drive but not when attached to the trailer). He called TransAm’s road service for help at 11:17 p.m., and then discovered that the truck cabin’s heat was broken. He fell asleep and woke up two hours later with a numb torso. Maddin also could not feel his feet. He called the road service again, and they told him to “hang in there” despite the life-threatening conditions. He waited about 30 more minutes before unhitching the broken trailer. Although his supervisor ordered him to stay, Maddin decided to drive off with the truck after almost three hours in the subzero cold. A service truck did arrive 15 minutes after he left, but it’s hard to blame him for deciding not to risk his life. It’s amazing he waited so long at all.
TransAm fired Madding for leaving behind his trailer. In his turn, Maddin filed a complaint with OSHA, arguing that his decision to drive away from the trailer was statutorily protected. Then Tenth Circuit sided with Madding and OSHA, but Gorsuch wrote a strong dissent. This strong dissent has come back to haunt him, as Democrats in his confirmation hearing and journalists and pundits outside of it are using the dissent to paint him as having an “arrogant and cold judicial personality.”
I thought I’d look into this, so I read Gorsuch’s dissent, which you can find online here. Here’s the most important paragraph, where Gorsuch explains why he believes TransAm’s firing of Maddin wasn’t illegal:
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. The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B). But that 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 and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not.
The logic is pretty straight forward and irrefutable. The law protects people who don’t operate equipment out of safety concerns. It doesn’t protect people who do operate equipment under safety concerns. And so–applying the statute–TransAm was free to fire Maddin as far as the law is concerned. And that is the only thing that Gorsuch (and his fellow judges) were called to decide. Gorsuch goes on:
… there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department 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 one in Congress’s place.
This is a theme that Gorsuch talked about frequently during his hearing. Again and again he reiterated his position that a judge has to apply the law as it is actually written and can’t simply “interpret” the law in ways that suit our notions of justice or fairness or propriety or even common sense.
Reading between the lines, the majority opinion in this case was especially egregious because the judges invented a rationale for their position (siding with Maddin) that wasn’t even raised by the OSHA lawyers. Gorsuch points out that the majority opinion cites a prior ruling (Cehvron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.) even though:
…the Department [OSHA] never argued the statute is ambiguous, never contended that its interpretation was due Chevron step two deference, and never even cited Chevron. In fact, the only party to mention Chevron in this case was TransAm, and then only in a footnote in its brief and then only as part of an argument that the statute is not ambiguous.
I don’t think there’s any doubt that Maddin should not have been fired. As a matter of morality and basic decency, that’s a given. But the responsibility to grant him that legal protection rests with the legislative branch. It’s their job to write the law to cover that case. They failed to do so. Relying on the judicial branch to fix their mistake by–in effect–amending the law to be what it should have been is impermissible under American rule of law. As Gorsuch put it, “it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood.”
I don’t like the ruling that Gorsuch came to, and Gorsuch didn’t like it either, but it was certainly the correct ruling to make under the Constitutional system of law we are supposed to live under. According to his critics, this case is supposed to make me like Gorsuch less, but it’s not working. It makes me like him more.
If we have every court (below SCOTUS) interpreting laws and giving them new meaning, expanding or contracting them, how is it exactly that we could expect a reasonable person to follow them from day to day? This isn’t rule of law, it’s rule of interpretation and will lead to more problems for the citizenry than it would fix It would also encourage lawsuits against any portion of the law one does not like or disagrees with.
While the law had poor consequences, it wasn’t the fault of the judge but the fault of legislature that this was the result. I believe one legislator even stated that she would not vote for him specifically because he followed the law instead of interpretation to look out for the ‘little guy’. She intoned that judges should keep in mind the problems their rulings would have on people, especially those most vulnerable. My first thought on that was that this was the job of the legislature, not the job of the judges.
So, the company could have just said, we arent firing him because he refused to move the load, we are firing him cause hes ugly. Being ugly isnt covered by that law either, and in some states (as you noted earlier) this is completely legal. Must the law clearly state that you also cant fire a person for other reasons on the same day he is acting with his saftey in mind?
“Your honor, i just didnt notice how ugly he was till he said he was afraid to die or lose his toes”
I think there’s ambiguity in what counts as a vehicle. If we consider the trailer (separate from the cab) a vehicle, then the trucker was statutorily protected from refusing to pull the trailer when its brakes were frozen. Safety did not bar him from operating the cab, and if he had pulled the trailer with him when he left, he wouldn’t have been fired. His refusal to operate the trailer was crucial to his firing.
Gorsuch could have used that ambiguity to reach a result which seems consistent with legislative intent and common morality. What offends the consciences of those who see his selection for the SCOTUS as problematic is that he doesn’t seem to have been sufficiently sympathetic to the needs of the trucker to be safe (or the legislature to be interpreted generously, in line with their purpose) to bother looking for this ambiguity. I’m certainly not smarter or more able to find ambiguity than Gorsuch (or, really, any competent lawyer, I should hope), but this argument occurred to me seconds after reading this article. If I were to ask those who passed the law whether they meant a trailer to count as a vehicle for the purpose of the statute, I am highly confident they’d agree they did.
And, while I respect Joel’s expressed concern about the predictability of law, it’s much easier for everyone but lawyers to predict law when it’s interpreted in accordance with basic decency than when it isn’t. Imagine what would have to have been the case for Maddin to have benefited from the (supposed) clarity of the law. He’d have had to have known the language of the law before he took his job, and either accepted that he wouldn’t be able to unhook his trailer even to save his life and avoid risking the lives of others, or negotiated an explicit exception for that case in his contract. For the company to have benefitted from the predictability of the law, they’d also have to have known about this provision, understood that it meant Maddin’s actions were legitimate cause for termination, and advised him that night (and fired him later) knowing this statute wouldn’t apply.
While it’s at least somewhat plausible that some lawyer for the company knew of this law before the incident, it seems unlikely that the decision-makers on the night in question were highly trained in the nuances of the options available to them, and virtually impossible to believe that Maddin himself understood the relevant provisions (or that it would have been reasonable to expect him to). Instead, it seems radically more likely that a bunch of people assumed the law would be reasonable, saw the situation primarily from their own perspective, and then hired lawyers to figure out which provisions of law apply after the fact. If that’s actually what happened, there are two serious problems with the predictability of law as a justification for a ruling: first, the benefit of predictability is going to exist much less often than its proponents suggest, and second, when it does apply, it will almost always apply primarily for those who keep highly-trained, very expensive lawyers on staff at all times, and consult those lawyers frequently to aid their decision-making. That means the benefits of Gorsuch’s approach are both rare and biased toward the already powerful, which is exactly what a justice system is supposed to help rectify. If we want a system which resolves disputes reliably in favor of the more powerful party, we needn’t have laws at all; the state of nature accomplishes that. The whole point of a justice system is to subordinate power to principle. Gorsuch perverts this goal by choosing to apply a principle which hews very close to power, while abandoning any sort of moral principles which are comprehensible to non-lawyers. Those principles are the source of the legitimacy which allows a legal system to do the job of making people feel like their concerns are heard fairly.
Reposting from Facebook:
>>The logic is pretty straight forward and irrefutable. <<
Not necessarily. It can be argued that he was operating his truck when he was sitting and waiting (certainly by definition he was the operator of the truck at this point), and that by driving, he was refusing to operate the equipment in a way that threatened his safety, in favor of operating it safely, by driving it. You can only arrive at Gorsuch's conclusion if you narrowly define "operate" to explicitly mean "drive." Since his entire argument hinges on the fact that the wording of the law is unambiguous, his dissent falls apart here.
From the decision:
TransAm’s argument equates the term “operate,” as used in the statute, with driving. However, TransAm has not directed this court to any authority for the proposition that Congress intended the refusal-to-operate provision of the STAA to be interpreted so narrowly, and has not explained how such a narrow interpretation furthers the purposes of the STAA. The ARB interpreted the term “operate” to encompass not only driving, but other uses of a vehicle when it is
within the control of the employee. Thus, under the ARB’s interpretation, the refusal-to-operate provision could cover a situation in which an employee refuses to use his vehicle in the manner directed by his employer even if that refusal
results in the employee driving the vehicle.
(The dissent believes Congress’s intent can be easily determined by simply choosing a favorite dictionary definition of the word and applying that to quickly conclude the statute is not ambiguous at all. However, in addition to not defining the term “operate,” Congress also did not unambiguously express its intent with regard to the definition of the term.
We, too, have found a dictionary definition of the word “operate” and discovered it means to “control the functioning of.” … This definition clearly encompasses activities other than driving. For that reason, the dissent’s conclusion that a truck driver is “operating” his truck when he refuses to drive it but not when he refuses to remain in control of it while awaiting its repair, is curious. The only logical explanation is that the dissent has concluded Congress used the word “operate” in the statute when it really meant “drive.” We are more comfortable limiting our review to the language Congress actually used. As the dissenting judge stated during oral argument, “Our job isn’t to legislate and add new words that aren’t present in the statute.”)
I fundamentally disagree with your adopted stance on the role of the judiciary. I think that one of the most important roles they play is in divining the purpose of laws when there are ambiguities or unforeseen circumstances. We can’t possibly expect our legislators to predict all circumstances and find the right words to encapsulate their intentions in the law. The judiciary is there to moderate between parties, justice and common sense, when the law doesn’t clearly cover a situation. What would be the point of the judiciary, if it were simply to take the law exactly as written, without interpretation? Robot judges next?
Daniel-
I’m not a lawyer, but as I understand it the company would have to convince the judges that they randomly, coincidentally noticed he was ugly right after this incident. Which doesn’t seem plausible. But yeah, if that was genuinely the reason, it’s fair game. That’s the point: the law in question is a narrow exception to a general rule, and so you have to rule on whether or not what happened really fits within the rule.
Kelsey-
I think that’s really good, interesting analysis and I’d argue that it’s a general argument against excessive amounts of regulation or excessive complexity in regulation. However, I don’t think it really impacts how Gorsuch should have ruled on the case given the laws that were actually in force at the time. (I also think that OSHA standards might be better understand than you think in the specific industries where they apply. I don’t know anything about them, but I haven’t had a job operating equipment (other than a laptop!) since I was a teenager.)
Domenick-
I don’t really think that’s true. Even if you adopt a pretty broad and vague definition of “operate” it’s pretty hard to justify driving a company truck as not “operating.” The only way to avoid Gorsuch’s decision is to not only say that sitting in the cab attached to the trailer was operating equipment (which I actually think is reasonable) but also to say that driving away wasn’t operating equipment. And that’s not really reasonable.
You don’t just need a broad definition. You need one that somehow exempts driving. Otherwise you can’t use the protection of the law (for non-operation) to protect Maddin’s decision to drive away.
Tyler-
That doesn’t contradict my post or Gorsuch’s decision. When there’s ambiguity: yeah, you’ve got to interpret. But in this case it simply wasn’t ambiguous.