Gorsuch and the Frozen Trucker

Neil Gorsuch, nominee for Associate Justice to the U.S. Supreme Court, and President Donald Trump, via the official White House YouTube page. (Public Domain)

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.

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.

Gorsuch Would “Walk Out the Door” If Asked to Overturn Roe

President Donald Trump introduces Gorsuch, accompanied by his wife, as his nominee for the Supreme Court at the White House on January 31, 2017. (Public Domain)

The following was an exchange between Supreme Court nominee Neil Gorsuch and Republican Senator Lindsay Graham during yesterday’s marathon confirmation hearings:

Graham: I don’t think there’s any reason to suggest you’re his [Trump’s] favorite. Had you ever met Mr. Trump personally?

Gorsuch: Not until my interview.

Graham: In that interview, did he ever ask you to overrule Roe v. Wade?

Gorsuch: No, Senator.

Graham: What would you have done if he had asked?

Gorsuch: Senator, I would have walked out the door.

This exchange is getting all kinds of coverage, and most of the analysis concludes or strongly implies that Gorsuch’s statement is a commitment not to overturn Roe v. Wade. As one example, here is Sophie Tatum’s take for CNN, where she puts Gorsuch’s statement at the hearing in the context of Trump’s promise to nominate a pro-life judge and then segues into “Gorsuch also defended the value of precedent…” This kind of analysis is making some of my pro-life friends furious and some of my pro-choice friends breathe a sigh of relief, but it’s a misunderstanding of what Gorsuch actually meant.

First, Gorsuch was not rejecting the possibility of overruling Roe v. Wade in particular or of overturning court cases generally. This is pretty clear from ths rest of his statement. After saying, “I would have walked out the door,” Gorsuch paused for a long moment before continuing: “That’s not what judges do.” So what, exactly, did Gorsuch mean here? What is it that “judges [don’t] do” and that would have prompted him to walk out on an interview with the President?

The answer is that Gorsuch is committed to rule of law, and that means that as a judge he is bound to only rule on the merits of the cases actually brought before him in light of the law and the relevant facts. To commit to the President–or to anyone–how he would rule on a hypothetical case that hasn’t even been brought yet is a flagrant violation of the judicial process that would have substituted politics for law. Gorsuch reacted so strongly not because he was defending Roe v. Wade, but because he was defending judicial process. In other words, it doesn’t matter which Supreme Court case Trump had asked about, the answer in any case would have been to “[walk] out the door.” You do not nominate anyone to the Supreme Court as a way of setting policy. You do it as a way of sustaining the Constitution. Therefore, Gorsuch’s reply here tells us absolutely nothing about how he would actually rule in a case involving Roe v. Wade other than that it would depend on the specifics of the case as it was actually argued before the Court.

Second, we still have every indication that Gorsuch is most likely an extremely pro-life nominee. The evidence for this comes from his book The Future of Assisted Suicide and Euthanasia. I haven’t read the book, but here are two quotes that I think reveal quite a lot about Gorsuch’s thinking in ways that are directly relevant to abortion. The first comes from a Vox article, I read Supreme Court nominee Neil Gorsuch’s book. It’s very revealing, and it sums up Gorsuch’s argument in the book:

Gorsuch’s core argument in the book is that the US should “retain existing law [banning assisted suicide and euthanasia] on the basis that human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”

Right off the bat, this is characteristically pro-life rhetoric. For all that they are derided as merely “anti-abortion,” the pro-life movement is united in opposition to abortion and euthanasia by a commitment to the idea that “human life is fundamentally and inherently valuable.” You simply never hear the pro-choice side use this kind of language.

In terms of logic, the key here is that “human life” is a broad category, and if it is broadened to include unborn human beings, then Gorsuch’s argument against legalized assisted suicide and euthanasia also applies to abortion. This is made clear in the second quote, this one from a New York Times article:

What gives individuals such an inviolable right, he has reasoned, is a status that legal scholars call “constitutional personhood,” defined by the 14th Amendment. Under that amendment, a state is prohibited from denying any constitutional person “life, liberty or property, without due process of law,” and cannot “deny any person within its jurisdiction the equal protection of the laws.”

The Roe decision expressly excluded human fetuses from that definition. As the court put it in 1973, “the word ‘person,’ as used in the 14th Amendment, does not include the unborn.” But if the Supreme Court were ever to recognize fetuses as constitutional persons, however unlikely that might seem now, then under Judge Gorsuch’s framework, the 14th Amendment’s equal protection clause would require that they be entitled to the same legal protection as constitutional persons. Laws that prohibit murder thus would have to be extended to them.

Judge Gorsuch has said as much himself. In his book, he wrote, “Abortion would be ruled out by the inviolability-of-life principle I intend to set forth if, but only if, a fetus is considered a human life.” He noted that had the court “found the fetus to be a ‘person’ for purposes of the 14th Amendment, it could not have created a right to abortion because no constitutional basis exists for preferring the mother’s liberty interests over the child’s life.”

The real give-away for me here, again, is Gorsuch’s very broad language. When he talks about “fetus” and “person” we can infer basically nothing, but when he says “if…a fetus is considered a human life“, then we’re talking about language that is interesting in two regards. First, it is deliberately secular/scientific as opposed to philosophical/theological. This is characteristic of Gorsuch’s thinking which, according to a quote from another article at The Atlantic, relies on “secular moral theory” rather than the stereotypically religious grounds common to much of the pro-life movement. What’s more: once we’ve entered that secular/scientific realm, the question of whether or not a fetus counts as “a human life” has an unambiguous, objective, and absolutely conclusive answer: of course it is.

So let’s recap:

  1. Gorsuch’s comment about walking out the door if Trump had asked him to overrule Roe v. Wade was not a defense of Roe v. Wade. It was a defense of judicial process, and it tells us nothing one way or the other about Gorsuch’s views on abortion in general or Roe v. Wade in particular.
  2. Gorsuch’s book opposes legalziation of assisted suicide and euthanasia under an argument that he explicitly states would apply in abortion as well if… the fetus is considered a human life,” in ways that suggest (as science dictates) that this is in fact the case.

Taken together, I’d say that Gorsuch comes across as about the most unambiguously pro-life candidate that you could possibly hope for in someone who has not ruled on abortion cases or made explicit statements about the subject. It’s certainly not open-and-shut. He’s a smart person, and smart person and capable of all kinds of weird, circuitous, unexpected twists and turns in their thinking and philosophy. He  may indeed be pro-choice, but that’s not where I’d lay my money.

Final thought: I listened to parts of the confirmation hearing yesterday, and there was one exchange I have not been able to find (it was either from around 5:20 or around 8:40) when Gorsuch talked about the motivation for his euthanasia book. It came down to concern for the most vulnerable in society: the poor, the disabled, and minorities. Left unspoken was “the unborn,” but it fit so perfectly in that list–and with Gorsuch’s philosophy as I understand it thus far–that it almost didn’t need to be spoken.


On the Supreme Court Ruling

Carlos McKnight of Washington waves a flag in support of same-sex marriage outside the U.S. Supreme Court on Friday, June 26. <a href="http://www.cnn.com/2015/06/26/politics/supreme-court-same-sex-marriage-ruling/index.html">The Supreme Court ruled 5-4</a> Friday that states cannot ban same-sex marriage, handing gay rights advocates their biggest victory yet. See photos from states that approved same-sex marriage before the nationwide ruling:

The New York Times has an interactive article titled “How We Changed Our Thinking on Gay Marriage.” It features interviews with a Republican Congresswoman, a Baptist pastor, and even the president of the Institute for American Values and former Proposition 8 witness. Given the Supreme Court’s ruling yesterday on same-sex marriage nationwide, I thought I’d post a piece from a couple years back that helped me formulate my own outlook on gay marriage. The essay is by William & Mary law professor Nate Oman. When it boils down to it, I ultimately share his view: “I am neither entirely joyful about gay marriage nor entirely pessimistic. Rather, I am worried. I think that gay marriage has the potential to be a positive social phenomena, as well as having the potential to be destructive. I don’t purport to know what its ultimate effects will be, and I suspect that they will be mixed.”

Nate Oman

Instead of virtually reposting Nate’s whole paper (which you really should take the time to read) by means of huge quotes, I’ve highlighted a few main points that really stand out to me:

  • Function vs. Equality: As much as I love the rhetoric of liberty and equality, such rhetoric may miss the point. “I do not think that marriage is primarily about equality,” writes Oman. “I do not think that it is a special status conferred on heterosexuals as a reward for being heterosexual, one from which homosexuals are excluded in order to convey a message of social inferiority. Rather, I think that is an institution that does certain things, serves certain functions.” Oman’s approach to the institution by means of processes and functions instead of abstract principles resonates with me. Marriage’s functions as identified by Oman include
    • Bonding couples together via legal commitment and social pressures/norms, resulting, on average, in more productive and resilient people.
    • Legitimating sexual activity and cutting down on the emotional, physical, and social risks of illicit sex.
    • Providing a context for child rearing and shielding their vulnerability.
  • Ideals vs. Reality: My unease over same-sex marriage was largely due to my religious upbringing and later research on family structure. I think the social science (including economics) is very supportive of the notion that family structure matters for a child’s economic, emotional, and educational well-being, with biological parents in a low-conflict marriage being the ideal. Yet, this same research suggests that stable, low-conflict same-sex marriages may be a healthy alternative to high-conflict heterosexual marriages, divorce, cohabitation, and single parent households. Even Mark Regnerus’ controversial research on child outcomes of same-sex parenting points to instability as the main culprit behind the negative results he found. If marriage became more of a norm and ideal in the gay community, it’s possible that this instability would decrease. Which leads to the next point.
  • Traditional Values vs. Hedonism: “Gay marriage,” Nate writes, “is potentially most powerful as a conservative retrenchment, an effort to impose a more traditional model on the unruly riot of family structures that already dominate the lives of many children.” Furthermore, he thinks “that one of the greatest potential benefits of gay marriage is that it makes possible gay chastity.” Swedish economist Andreas Bergh once described Sweden has heading in a more market-oriented direction, while the U.S. tends to move in a more socialist direction. I think of the two communities in similar ways. Broadly speaking, it seems that heterosexual relationships are becoming increasingly fragile and fragmented, while homosexual relationships are moving in a more stable, domestic direction.

Nate concludes,

To homosexuals who are now going to get married, I say congratulations. I hope that you have happy and fulfilling lives. I hope that your marriages are strong, and I hope that they become an example that will discipline and orient the lives of others. To the advocates of gay marriage, I hope that you will stop talking so much about freedom and equality and will start talking about marriage, about how it should organize people’s sexual lives and give structure to their families. I hope that your new found enthusiasm for marriage translates into the revival of some of the informal social pressures and expectations that signal to everyone that marriage is not simply a choice or a right but a preferred way of life…I don’t expect the language of liberty and equality around gay marriage to recede from the public stage but having lost the political battle on gay marriage, social conservatives should embrace the rhetorical and social possibilities it provides for talking about the good of marriage as opposed to its alternatives. A focus on gay marriages as a superior structures for gay families rather than on gay marriage as a marker of social equality strikes me as the best road going forward. In the end, I don’t know what will happen. I think that marriage will be good for gay families. I am less sanguine about the effects of the gay marriage debate on our shared public understanding of marriage. I fear it has reinforced ideas that are destructive to marriage at the margins. The good news is that I may be wrong, which would make me happy.


All You Need to Know About the Hobby Lobby Case

2014-03-31 Hobby Lobby

The Washington Post has a couple of great sources if you want to know more about the Hobby Lobby case the Supreme Court is considering right now. In a nutshell, Hobby Lobby is a Christian company that doesn’t want to provide access to certain kinds of birth control that can work as  abortifacients instead of as contraceptives.

To get even more of a background in the case, I recommend Jaime Fuller’s Here’s what you need to know about the Hobby Lobby case. For legal analysis of the constitutional issues, I recommend Prof. Michael McConnell’s post at Volokh Conspiracy (which now operates within the WaPo). These two articles will give you a solid understanding of this controversial and well-known court case.