In his victory lap speech at the annual conference of the Federalist Society, Neil Gorsuch archly revisited the controversey surrounding his bizarre (but revealing) dissent in Trans-Am Trucking v. Administrative Review Board, U.S. Department of Labor (2016).
This is what Gorsuch said. “When it’s done everyone, who’s not a lawyer is going to think I just hate truckers … but so be it. In our legal system, judges wear robes, not capes.”
Gorsuch and his black-tied cohorts at the Federalist Society extravaganza all got a good “let them eat cake” chuckle from his Trans-Am Trucking “dissent defense.” But if you read the majority opinion of the Court, and then Gorsuch’s dissent, the poverty of his analysis is striking, and its import vast beyond the scope of the decision itself.
The Case of the Frozen Truck Driver
In January 2009, Alphonse Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. Maddin reported the problem to his employer, TransAm Trucking and waited three hours for a repair truck. Lacking heat, losing feeling in his extremities, numb in his torso, and uncertain about when (or if) the repair truck would arrive, Maddin finally unhitched his cab from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.
The Court upheld the final order of the Administrative Review Board of the Department of Labor, which ruled Maddin engaged in protected activity under the Surface Transportation Assistance Act (STAA) when he reported the frozen brake problem to TransAm and when he refused to obey his supervisor’s instruction to either stay with the trailer and wait for help or to drive the truck while dragging the trailer. This appellate decision turned on the ambiguities of the undefined term “operate” in the STAA, with some reliance upon the influential Chevron Supreme Court decision to affirm the authority of the Department of Labor, in this instance, to interpret its way through this statutory ambiguity.
The Court’s opinion pivots on the protected status offered by the STAA to an employee who “refuses to operate” a vehicle that a reasonable person might conclude was unsafe to the employee or the public. The Court dismisses TransAm’s assertion that because Maddin drove the truck after being told to “stay put,” he did, in fact, “operate” his vehicle and so could not claim protection under the “refusal to operate” clause. In the absence of a statutory definition of “operate,” the Court resolved the ambiguity of the usage of the term (invoking Chevron) by affirming the agency’s interpretation was “a permissible construction of the statute.”
The Gorsuch Dissent
The Gorsuch dissent in TransAm Trucking is striking for the smug, pedantic, patronizing, and gratuitous (yet labored) endeavour to undermine (if not strip away altogether) the “reasonable person” and “permissible construction” foundations of the opinion (one can easily see why his Supreme Court colleagues may regard Gorsuch as a smarty-pants). Here is the gist of the dissent.
For the Court, according to Gorsuch, it is irrelevant whether the TransAm termination decision was “wise” or “kind.” The Court’s only concern is whether the termination decision was illegal. The trucker did not “refuse to operate” his vehicle. He unambiguously “operated” the vehicle even when instructed not to do so. “And there’s simply no law … giving employees the right to operate their vehicles in ways their employers forbid.”
Chevron confers no administrative deference in this case. Absence of a statutory definition of the contested term (operate) is not sufficient basis for constituting “ambiguity,” given one might adequately resolve any definitional uncertainty by turning to a dictionary. Which Gorsuch promptly does, providing his colleagues with definitions of the words “refuse” and “operate”.
In any event, the Department of Labor itself never claimed the statute was ambiguous and never invoked Chevron step two deference as the basis for its interpretation. With a rhetorical flourish that underscores his contempt for the administrative state (shared by many at the Federalist Society), Gorsuch reminded his colleagues that courts don’t normally make uninvited “forays” into case law on behalf of litigants, “least of all administrative agencies.”
Gorsuch places upon Congress the burden for including language in his legislation that explicitly allows the employee to “refuse to operate a vehicle in the particular manner the employer directs and instead operates it in a manner he thinks safe.” Without such explicit and declarative language, there is no textual basis for the Court’s decision, and this remains true even if the stated purpose of the STAA, and the intention of its legislators, was to secure the “health” and “safety” of employees under circumstances of the sort experienced by Maddin. Legislative intent and legislative history cannot override the plain and literal meaning of a statute.
The Court’s majority therefore commits a “well-documented mistake” when it assumes a statute pursues its “putative (or even announced)” purposes to their absolute or logical conclusions (particularly for ends as “ephemeral and generic” as health and safety). The Court’s job is “to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.”
Law and Order
In his TransAm dissent, Gorsuch’s jurisprudential logic is so literal and so barren that one is left wondering whether, in his calculations, any meaningful role exists at all for the courts, and for judicial review (and, for that matter, for any administrative or regulatory body), given the burden of responsibility he lays upon the legislature to precisely enumerate, in all conceivable instances, what its laws permit and what its laws forbid. Despite the nod he gives to intentionalism in his Federalist Society speech, Gorsuch clearly is only concerned with the intentions of the founders, not the intentions of the lawmakers. Which leaves us with troubling questions about how Gorsuch and his Federalist Society colleagues perceive the purposes and functions of government, generally. In other words, what does the rule of law encompass, ultimately, beyond the maintenance of “order,” of clear lines of authority and submission that brook no dissent?