Why Slate Slamming SCOTUS Nominee Neil Gorsuch As ‘Cold’ Isn’t A Bad Thing

On Tuesday, Slate published an article by Jed Handelsman Shugerman, titled and subtitled: “Neil Gorsuch and the ‘Frozen Trucker.’ The judge’s infamous dissent reveals he may not have the temperament to serve on the Supreme Court.”

In the piece, Shugerman writes about Judge Gorsuch’s dissent in TransAm Trucking v. Administrative Review Board, otherwise known as the “Frozen Trucker” case. The details are as follows, parts of which come from the ruling itself:

On a subzero night in January 2009, Alphonse Maddin, a truck driver, pulled over to the side of the road “because he was unable to find the TransAm-mandated fuel station and his gas gauge was below empty.” When he tried to proceed, he discovered his brakes had frozen. He reported the situation to TransAm, and the company told him they were sending a repair person to his location.

At the same time, Maddin “discovered that his auxiliary power unit (‘APU’ or ‘bunk heater’) was not working, and there was no heat in the cab of the truck.” Maddin fell asleep, and when he woke up, he was allegedly exhibiting symptoms of hypothermia. He called dispatch, and told them about his condition. They told him to wait. Shortly thereafter, he unhitched his trailer, and called his supervisor, Larry Cluck, who insisted Maddin turn on the heater. Maddin allegedly told Cluck that the heater wasn’t working, and that he was leaving to “seek help.”

Cluck ordered Maddin not to abandon his cargo, and to either drive with the trailer, or stay put. Maddin left, and approximately 15 minutes later, a maintenance truck arrived. Maddin was fired shortly thereafter.

Maddin filed a complaint with OSHA, claiming he was protected under whistle-blower provisions. He was eventually reinstated, with back pay. Appeals were filed, but ultimately, Alphonse Maddin prevailed.

The “whistle-blower provision” around which this entire case revolves reads in part:

An employer cannot fire an employee 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.”

This is a difficult story. A man was put in an impossible situation, and he made a decision that got him fired. Ultimately, he was reinstated.

Enter Judge Gorsuch. During TransAm Trucking v. Administrative Review Board, he was the sole dissenter. In his dissenting opinion, Gorsuch noted that while the situation was indeed unpleasant, empathy cannot factor into a judge’s decision:

“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 was to decide whether the decision was an illegal one.

The Department of Labor says that TransAm violated federal law…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…

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. And 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’ place.”

Gorsuch notes that the trucker indeed violated the statute as written:

“He called his company for help, and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above.”

The judge goes on to argue that the statute seems “perfectly plain,” and “doesn’t capture the conduct” demonstrated by the driver:

“To be sure, my colleagues invoke the statute’s purposes – employee ‘health’ and ‘safety’ – and suggest the result they reach is consistent with them. After all, they note, the employee here who chose to defy his employer’s instructions and drive his truck as he thought best didn’t do so to write a novel or with some other esoteric end in mind, but because he bore safety concerns. Just the sort of employee safety concerns, my colleagues indicate, Congress intended to protect.

Even supposing all this is true, though, when the statute is plain it simply isn’t our business to appeal to legislative intentions. Gemsco, Inc. v. Walling, 324 U.S. 244, 260 (1945) (‘The plain words and meaning of a statute cannot be overcome by legislative history which, through strained process of deduction from events of holy ambiguous significance, may furnish dubious basis for inference in every direction.’)

And is it a well-documented mistake, too, to relate to ‘health’ and ‘safety’? The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And 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…

Whatever the case, it is our job and work enough for the day to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t. I respectfully dissent.”

Slate‘s Jed Handelsman Shugerman views this dissent as “callous,” and “cold.”

Gorsuch’s opinion in what’s known as the “frozen trucker” case also demonstrates an arrogant and cold judicial personality. I have read very few modern opinions that were more callously written than Gorsuch’s TransAm dissent…

Gorsuch seems to understand the employer’s sarcasm was wrong and exploitative, and yet further along in the dissent he somehow can’t help himself from engaging in that same kind of sarcasm. Turning to the statute’s “refuses to operate” text, he writes, “And of course, nothing like that happened here.” “Of course,” as if this were an obviously easy case. Later, Gorsuch says the statute is “perfectly plain.” If Gorsuch finds this case so simple, it’s a warning he will oversimplify future cases when it suits his ideology.

He then turns to the facts: “TransAm expressly … permitted him to sit and remain where he was and wait for help.” Sure, they permitted him to freeze. Where another dissenting judge might have expressed some sympathy but lamented that the statute was not written more clearly, Gorsuch piles on more derision: “Maybe the [Labor] Department would like such a law, maybe someday Congress will adorn our federal statutes with such a law.” Adorn, as if this safety statute was just a fanciful decoration. Let them eat cake.

…his lack of self-awareness of his theory’s flaw plus his acerbic dismissiveness of real-world conflicts are not a good sign that he has the appropriate judicial temperament for the Supreme Court.

There are other points made in the piece by Shugerman, but here, we will stick to Gorsuch’s alleged callousness as it relates to his temperament as a SCOTUS nominee. This piece serves a great purpose; it’s a sterling example of how progressives and conservatives view the Supreme Court, and jurisprudence in general.

As Neil Gorsuch said during his opening statement before the Senate: “A judge who likes every outcome he reaches is probably a pretty bad judge, stretching for policy results he prefers rather than those the law compels.”

Conservatives correctly see the third branch of our co-equal government as a neutral arbiter, a blind and dispassionate figure weighing only what is placed on the scales of justice in order to reach a conclusion. Progressives see the court as an additional legislative branch, one that requires sympathetic operators who will re-write legislation in order to balance perceived injustices.

Legislating is not the role of the Supreme Court; that is the role of the legislative branch.

A “cold” and dispassionate individual is precisely the kind of judge qualified to sit on the Supreme Court. A Justice weighs evidence and reaches a conclusion based only on that evidence. The conclusion may be disagreeable; the personal sensibilities of the Justice may even be offended by his own ruling. However, that is how the Supreme Court must operate.

If the Supreme Court reaches beyond its boundaries, becoming a de facto legislative branch, who is then able to check its power? No one. The Court’s authority would become limitless, only bound by the ambitions of its Justices.

Because SCOTUS Justices are not subject to the “will of the people” via election, and their position is secure for a lifetime, their power must be limited to neutral arbitration.

It’s very likely that Gorsuch didn’t like his dissent in TransAm, but felt it was necessary given the majority ruling, as well as the language of the law. That cognitive dissonance – that ability to set aside one’s own personal opinion and make a decision based on the law as written – is far from a bad thing. That “coldness,” what some might rightly call dispassion, is what makes an exemplary judge, and what would make Neil Gorsuch an outstanding and fair Supreme Court Justice.

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