At the opening day of his confirmation hearings on Tuesday, several Democratic members of the Senate Judiciary Committee blasted Judge Neil Gorsuch for his dissent in a case last summer in which he would have upheld a company’s firing Alphonse Maddin, who, after running out of gas on a freezing road in Illinois and enduring three hours in the cold, unhitched the trailer and drove off in search of fuel.
Maddin sued his employer, TransAm Trucking, which claims it fired him because he disregarded instructions from the company to stay put and that a repairperson would be sent. Maddin said he drove to get gas only after being unable to feel his feet and experiencing trouble breathing because of the cold, both possible signs of hypothermia.
An arbitrator ruled for Maddin, finding that federal law protects workers from being forced to operate vehicles in unsafe conditions. TransAm eventually appealed to the 10th Circuit, which backed Maddin.
In his dissent, Judge Gorsuch wrote:
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, [citation omitted]. 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. 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’s place.
As Elie Mystal at Above the Law explains, “this is just kind of how conservative judges roll.” To illustrate, Mystal, who disagrees with Gorsuch’s reasoning, imagines a dialogue that goes as follows:
Victim: I have a problem.
Conservative: Does Congress say I should care?
Victim: Kinda!
Conservative: Not good enough.
All true. But I also disagree with Gorsuch because his adherence to the text of statutes aside, the judge has shown a willingness when it suits his outlook to embrace rulings that turn on their facts. At the hearing, Gorsuch spoke approvingly of a Supreme Court decision five years ago that concluded the Fourth Amendment requires police to obtain a search warrant before attaching a GPS tracking device to a suspect’s car to monitor his movements. In that case, police installed the device on the undercarriage of the suspect’s Jeep while it was parked in a public parking lot and for the 28 days that ensued used the device to record the vehicle’s movements.
In ruling that attaching the tracker to the suspect’s vehicle and using it to monitor his movements constituted a search within the meaning of the Fourth Amendment, the majority noted the invasion of the suspect’s private property and the duration of the incursion. As Justice Scalia wrote for the majority:
Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.
Judges make distinctions based on facts all the time. In the case of the trucker, the record established that Maddin, after falling asleep in the unheated truck, received a call from his cousin, who testified that Maddin’s speech was slurred and he sounded confused. As noted, Maddin later told his supervisor that he was having difficulty breathing because of the cold.
The question for Judge Gorsuch is less one about reading the text strictly. It’s about reading the facts clearly. So why do facts seem to matter so little to Judge Gorsuch in the case of Maddin and so much to him in a case decided by Justice Scalia, the originalists’ hero whom Gorsuch would replace?