In Defense of Neil Gorsuch

No one ever said that going through the Supreme Court nomination process is easy. Central to the Senate’s constitutionally mandated role to provide “advice and consent” to the president, is the rigorous questioning of the nominee by the Senate Judiciary Committee, and a subsequent vote of the entire chamber. However, there is a difference between legitimate questions concerning a potential justice’s ability to fairly and impartially decide cases, and attempting to besmirch a nominee’s character. This offense is especially egregious when the basis for such criticism is a decision exemplifying judicial restraint and deference to the role of Congress in our tripartite federal system.

The specific criticism of Judge Gorsuch came at the hands of former comedian, radio talk show host, and current Senator from Minnesota, Al Franken. The case upon which Franken question Gorsuch was TransAm Trucking, Inc. v. Administrative Review Board, United States Department of Labor. If one took Franken at his word, Judge Gorsuch is some kind of heartless textualist automaton. “I understand the reasoning behind your dissent, but I am actually kind of puzzled by it, as well,” Franken quipped early on. According to Franken, Judge Gorsuch would rather have allowed Alphonse Maddin to freeze to death, or create an unsafe driving condition for other drivers than to inject some heart into the law.

But rather than allow Franken’s narrative to tug at our heartstrings, we should be focused on the real issue implicated by this case: What precisely is the role of the federal judiciary in our constitutional order? To paraphrase Chief Justice John Marshall from the seminal case Marbury v. Madison, it is the job of federal judges to say what the law actually is, not what they wish it could be. As an example, let’s consider the way the Majority and Judge Gorsuch approached the legal issues in the TransAm Trucking case.

The facts of TransAm are fairly straightforward. A trucker named Alphonse Maddin was a truck driver who was fired by his employer, TransAm Trucking, for “abandoning his load while under dispatch.” The brakes on Maddin’s trailer had become frozen in sub-zero conditions, and he was forced to pull over to the side of the freeway. With the heater in the cab malfunctioning, and temperature in the cab dropping rapidly, he was instructed by his employer to either drag the trailer to its destination or stay put until help arrived. After waiting several hours, Maddin decided to unhitch the trailer and leave to seek help, only to have the promised repair truck arrive fifteen minutes later. After he was terminated by TransAm, Maddin filed a complaint with the Occupational Health and Safety Administration under the whistleblower provision of The Surface Transportation Assistance Act (“STAA”). And after several rounds of litigation, the case found its way to the 10th Circuit and Neil Gorsuch.

Under the whistleblower provision of the STAA, an individual cannot be terminated for “refusal to operate a vehicle” out of concerns for their safety and or the safety of others. The Department of Labor’s Administrative Law Judge found that that “refusal to operate” encompassed Madden’s actions. Under the “Chevron Two-Step” applicable to the review of agency interpretations of congressional statutes by federal courts, judges must first ask whether Congress has directly spoken to the precise question at issue. If the answer is yes, the court’s inquiry is at an end. If the answer is no, judges then consider whether the agency’s construction of the statute was permissible. The TransAm Majority found that “refusal to operate” was ambiguous, and that the agencies construction of the statute to include the circumstances of Mr. Maddin was permissible because the purpose of the statute was to promote safety and welfare.

Judge Gorsuch disagreed.

For Gorsuch there was nothing ambiguous about “refusal to operate,” which is definable by turning to a simple dictionary. Gorsuch writes that “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.” Rather than being terminated for refusal to operate a vehicle in contravention of safety concerns, Mr. Maddin decided to operate his truck in direct opposition to his employer’s orders to remain. According to Judge Gorsuch, “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…”

Judge Gorsuch writes that the effect of the Majority’s opinion was to allow “refusal to operate” to “to encompass its exact opposite and protect employees who operate their vehicles in defiance of their employers’ orders.” As the product of political compromise, Judge Gorsuch argues that congressional statutes should be enforced by judges according to “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.” Whatever the basis for that compromise, it is the job of federal judges “to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.”

The majority and dissenting opinions in TransAm go to the very heart of the proper role of the federal judiciary in our constitutional system. An alternate system in which federal judges sit as a “Super Legislature” revising and creating new law when and where it sees fit would destroy the Framers carefully crafted checks and balances. It is the job of federal judges to apply the plain meaning of the law, which after all is composed of words of the English language, and resist the temptation to supplement their will for the people expressed through their elected representatives. Any other system would replace the will people with the will of unelected judges who are nearly impossible to remove from office.

In short, Al Franken was wrong, and Neil Gorsuch was right.

Timothy Snowball is a third year Juris Doctor candidate at The George Washington University Law School who is interested in constitutional law, history, and government. Tim holds degrees in political science from the University of California Berkeley and Grossmont College in San Diego.

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