I am not a lawyer but I am a writer, and based on my quick read of a couple of his opinions, Supreme Court nominee Neil Gorsuch is wonderful. I just can't tell whether he's a devout pedant or a sly and merry prankster. I'd like to think he's both. Regardless, he's concerned that the federal government is too big and too powerful.
I must admit that I didn’t tune in to President Trump’s primetime announcement Tuesday, so all I know about the nominee at this point is what I could readily google. The consensus is that he’s smart, eloquent, and focused, and that he writes with great style—although he’s very easy to read. He’s also inclined to be skeptical of government power and a strong supporter of the Constitution—meaning its original intent.
And, coincidentally, he’s recently provided a dissenting opinion in a trucking case that highlights those traits precisely. As far as administrative law appeals go, TransAm Trucking, Inc. v. Admin Review Bd., U.S. Dep't of Labor is comparatively accessible and instructive for anyone who cares about managing a fleet.
Essentially, the case concerns a truck driver who was terminated for abandoning a load. An administrative law judge and the Department of Labor concluded the driver was terminated in violation of the whistleblower provisions of the Surface Transportation Assistance Act. He was ordered reinstated with backpay. TransAm filed a petition for review with the U.S. Court of Appeals 10th Circuit.
If you don’t care to scan the entire 23-page decision, skip to the last five pages and the dissenting opinion by Gorsuch. Indeed, his introductory paragraph explains the case beautifully:
- A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. 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, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.
That’s from the guy who’s just a few Democrats away from a nice long tenure (he’s just 49) on the Supreme Court: Could it be any more easy to understand? And the subsequent legal bits are just as simply explained—although the dissent eases into some very substantial discussion of complex legal matters.
In this instance, Gorsuch contends the case comes down to deciding what the term “refuse to operate” means, because a truck driver’s refusal to operate an unsafe vehicle is, by law, protected:
- 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.
Thus we get to the crux of the matter: Gorsuch has serious reservations about something known as the doctrine of Chevron deference. As I understand it, the precedent set in Chevron is that when a statute is ambiguous, an executive bureaucracy (here, the DOL) gets to say what the statute means if that interpretation is reasonable.
For Gorsuch, Chevron means that the executive branch—in deciding what Congress meant by the law—is doing the court’s job. And there’s this fundamental matter of “separation of powers,” as he writes in Gutierrez-Brizuela v. Lynch:
- Under any conception of our separation of powers, I would have thought powerful and centralized authorities like today’s administrative agencies would have warranted less deference from other branches, not more. None of this is to suggest that Chevron is “the very definition of tyranny.” But on any account it certainly seems to have added prodigious new powers to an already titanic administrative state — and spawned along the way more than a few due process and equal protection problems …
The gist: The federal government is big enough already; judges don’t need to let executive decisions go unchecked. Does this apply in the TransAm case? Not so much, because neither side brought it up—but they sure could have, Gorsuch suggests, and the case is yet another example of just what bothers him.
Given that the other members of the court had no problem deciding that the truck driver did, in fact, “refuse to operate” the rig in a manner consistent with the safety protection—and most in trucking would agree—my only question here is whether Gorsuch truly believes the interpretation is wrong, or is he just having some lawyerly fun with the obvious contradiction (What do you mean he refused to operate? He drove off!) as a way to continue to push to reconsider the Chevron deference?
I’m hoping that’s the case—and that We The People can look forward to more such serious fun from the Supreme Court.