His Supreme Court confirmation hearing gave Neil Gorsuch a chance to defend his dissent in a case in which he argued that a company had the right to fire a truck driver if he didn’t take one of the two options his supervisor presented: haul a trailer with frozen brakes—or sit in an unheated truck in subzero weather, potentially freezing to death. The driver had taken option three—unhitching the trailer and driving the trailerless truck to safety and warmth—an option Gorsuch said did not exist under the law. Here’s how Gorsuch defended his position:
"The law as written said that he would be protected if he refused to operate and I think by any plain understanding he operated the vehicle," Gorsuch said Tuesday, when asked about the case. "My job isn't to write the law, Senator. It is to apply the law. And if Congress passes the law saying a trucker in those circumstances gets to choose how to operate his vehicle, I will be the first one in line to enforce it. "
The two other judges who served on the 10th Circuit Court of Appeals panel hearing that case with Gorsuch disagreed, and in the opinion directly took issue with his insistence that “by any plain understanding [the driver] operated the vehicle.” A lot here hinges on the definition of the term “operate,” since the employee had the right to refuse to operate, and it sounds like Gorsuch’s fellow judges were about out of patience with him on this one:
The dissent believes Congress’s intent can be easily determined by simply choosing a favorite dictionary definition of the word and applying that to quickly conclude the statute is not ambiguous at all. However, in addition to not defining the term “operate,” Congress also did not unambiguously express its intent with regard to the definition of the term. [...]
We, too, have found a dictionary definition of the word “operate” and discovered it means to “control the functioning of.” ... This definition clearly encompasses activities other than driving. For that reason, the dissent’s conclusion that a truck driver is “operating” his truck when he refuses to drive it but not when he refuses to remain in control of it while awaiting its repair, is curious. The only logical explanation is that the dissent has concluded Congress used the word “operate” in the statute when it really meant “drive.” We are more comfortable limiting our review to the language Congress actually used. As the dissenting judge stated during oral argument, “Our job isn’t to legislate and add new words that aren’t present in the statute.”
As the Constitutional Accountability Center wrote of the case:
Gorsuch’s dissent relied upon a crabbed interpretation of a federal law intended, among other things, “to promote the safe operation of commercial motor vehicles” and “to minimize dangers to the health of operators of commercial motor vehicles.” Instead of considering the text of the statute as a whole and Congress’s plan in enacting the law, Gorsuch’s dissent focused narrowly on several words of text. Starting with statutory text is entirely proper, of course, but courts interpreting laws must consider all of the text, not just the text of isolated phrases.
Gorsuch would claim to be upholding the law in a pure manner, but somehow his idea of purity is consistently far right, and wherever possible involves siding with big business and screwing workers. Funny how that works.
