This Is How Neil Gorsuch Thinks
By Roger Parloff
March 14, 2017
8:51 a.m.
“A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck,” wrote appeals court judge Neil Gorsuch, last August, in a dissenting opinion that is apt to come up at his confirmation hearings next week for the open seat on the U.S. Supreme Court.
“He called his company for help and someone there gave him two options,” Gorsuch continued. “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.”
About a week later, in January 2009, the employer, TransAm Trucking, fired the driver for insubordination. In January 2013, an administrative law judge ruled that the trucker’s termination had been illegal, under a federal law that protects employees who “refuse to operate” vehicles under unsafe conditions. In November 2014 that ruling was unanimously upheld by a three-member administrative review board of the U.S. Department of Labor and then, last August, by Gorsuch’s two colleagues on a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit.
Gorsuch parted ways with them because, as he explained, the trucker could have simply waited in his tractor-trailer. The problem, then, wasn’t that the driver had “refused to operate” the truck in an unsafe way, Gorsuch explained, but rather that he had operated the truck, and had done so in a way his employer had forbidden.
“It might be fair to ask whether TransAm’s decision was a wise or kind one,” Gorsuch continued. “But it’s not our job to answer questions like that … 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.”
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