by Barry Goldman
The “frozen trucker case” got a fair amount of attention a few years back. At Neil Gorsuch’s Supreme Court confirmation hearing Senator Al Franken hammered him about it. You can watch it here. The facts of the case are these:
Alphonse Maddin was employed as a truck driver by Petitioner TransAm Trucking (“TransAm”). In January 2009, Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.
Maddin challenged his discharge in a proceeding before an Administrative Law Judge and won. TransAm appealed to the Administrative Review Board, and Maddin won again. TransAm then appealed to the Court of Appeals, which issued its decision in August of 2016, more than seven years after the incident.
The 10th Circuit found in Maddin’s favor, with Gorsuch in dissent. All that is water under the bridge. Today Gorsuch has a life appointment to the Supreme Court, and Franken is back in private life. But it is worth revisiting the case for what it can tell us about legal reasoning and judicial decision making.
As a truck driver, Maddin was covered by the Surface Transportation Assistance Act. That law prohibits an employer from discharging a trucker if he:
refuses to operate a vehicle because he… has a reasonable apprehension of serious injury… because of the vehicle’s hazardous safety or security condition.
The evidence showed that Maddin, after more than three hours in an unheated cab, was slurring his speech and could no longer feel his feet. That was enough for the rest of the judges who heard the case to conclude that he had a “reasonable apprehension of serious injury,” and therefore his actions were protected. Judge Gorsuch was not persuaded. His dissent is worth quoting at length:
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 49 U.S.C. §31105(a)(1)(B). 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.
There are at least two explanations for Gorsuch’s dissent. One was suggested by Maddin’s lawyer, Bob Fetter, when he appeared on Democracy Now with Amy Goodman. Fetter said Gorsuch’s name was not on President Trump’s short list of nominees to replace Justice Scalia until after he wrote the dissent in TransAm. It may be a coincidence, but it also may be that Gorsuch’s dissent was a demonstration of his radical pro-business, anti-regulation, and textualist bona fides, an audition for the Federalist Society and for the job he now holds.
Another explanation is that Gorsuch really believes the role of a judge is to apply the language of the law without regard to how cruel or how absurd the consequences may be. This is a view with a long history. Some people believe the law is society’s only protection from a Hobbesian war of all against all. When slavery was the law of the land there were judges who were dedicated abolitionists in their personal lives but believed it was their judicial duty to uphold the Fugitive Slave Act and return escaped slaves to their owners.
In Jones v. Van Zandt in 1842, Judge McLean wrote:
I was not prepared to hear, in a Court of Justice, the broad ground assumed… That a man, in the exercise of what he conceives to be a conscientious duty, may violate the laws of the land…. The law is our only guide.
If convictions… are to be substituted as a rule of action in disregard of the law, we shall soon be without law and without protection…. What one man, or association of men, may assume as the basis of action, may be assumed by all others. And in this way society may be resolved into its original elements, and then the governing principle must be force. Every approximation to this state is at war with the social compact…. If the law be wrong in principle, or oppressive in its exactions, it should be changed in a constitutional mode…. But the law, should be respected and obeyed. Any departure from this inflicts a deep wound on society, and is extremely demoralizing in its effects.
Justice Swan of the Ohio Supreme Court wrote in 1859 in Ex parte Bushnell:
[I]f a weary, frightened slave should appeal to me to protect him from his pursuers, it is possible I might momentarily forget my allegiance to the law and constitution, and give him a covert from those who were upon his track. There are, no doubt, many slaveholders who would thus follow the impulses of human sympathy; and if I did it, and were prosecuted, condemned, and imprisoned, and brought by my counsel before this tribunal on a habeas corpus, and were then permitted to pronounce judgment in my own case, I trust I should have the moral courage to say, before God and the country, as I am now compelled to say, under the solemn duties of a judge, bound by my official oath to sustain the supremacy of the constitution and the law, “The prisoner, must be remanded.”
According to the legal scholar Robert Cover, the Herman Melville novel Billy Budd was inspired by the moral struggle of abolitionist judges who were required to apply the Fugitive Slave Law. Melville’s father-in-law was Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court and the author of several such decisions. Readers will recall the character of Billy Budd was portrayed as “an angel of God.” But, because the law is the law, “the Angel must hang.”
I think this view is profoundly and dangerously mistaken. Fortunately, there is an alternative. Quoting from the 1869 Supreme Court case United States v. Kirby:
All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.
The common sense of man approves the judgment mentioned by Puffendorf that the Bolognian law which enacted, “that whoever drew blood in the streets should be punished with the utmost severity” did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony does not extend to a prisoner who breaks out when the prison is on fire — “for he is not to be hanged because he would not stay to be burnt.”
Tellingly, the ur-textualist Justice Scalia himself quotes this language from Kirby when it suits him. See his dissent in K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988).
Applying this principle, I would not return the escaped slave, I would not hang Billy Budd, and I would not permit TransAm to fire the frozen trucker. I recognize that reasonable people can disagree about which results are absurd and which are merely disagreeable. I’m happy to have that fight. But if one reading of the law threatens an abstract harm in the future, and another reading threatens a concrete harm to an identified victim right now, I think the choice is clear. People do not lose respect for the Law when it declines to impose absurdities. They lose respect for the Law when it imposes them.