Supreme Court nominee Neil Gorsuch is catching well-deserved shade for favoring employers in legal disputes. As he began his Senate confirmation hearings, the Supreme Court, which Gorsuch hopes to join, unanimously overturned his decision siding with a school board against an autistic pupil in a special education dispute. But the Gorsuch opinion that interests me most, because it involves dictionaries, is “The Case of the Frozen Trucker.”
Here’s what happened—
Alphonse Maddin is a truck driver fired for coming in from the cold—the twenty-seven below, middle-of-the-night, Illinois winter cold. It was so cold that the brakes on his trailer froze when he stopped on the shoulder to check the location of a gas station, so Maddin called his employer, TransAm Trucking, for help. They told him to wait for a repair truck, which would come in half an hour. Three hours later, with no repair truck, no heat in his cab (his interior temperature gauge read –7 F.), and suffering numbness and slurred speech, both symptoms of hypothermia, Maddin again asked TransAm for help. They told him to “hang in there.” Instead, fearing he could wind up like the meat he was hauling, Maddin unhitched the rig’s cab and went to find help. The repair truck showed up fifteen minutes later. Maddin returned to the trailer, and after driver and brakes were thawed, he continued on his way. Soon after that, TransAm fired Maddin for abandoning his load, even though he returned quickly and it was undamaged. Maddin appealed his termination to an Administrative Review Board of the Department of Labor, which ordered him reinstated with back pay. TransAm appealed, but in a 2-to-1 decision, a panel of the U.S. Court of Appeals affirmed the Board’s reinstatement order (TransAm Trucking v. Department of Labor, 2016). Judge Neil Gorsuch dissented.
The appeals court found that Maddin’s actions were covered by an employee protection statute that makes it illegal to fire someone who refuses
to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition. [49 U.S. Code § 31105]
But Gorsuch disagreed, not because the trucker was turning to ice—Gorsuch called Maddin “the trucker” instead of using his name and he downplayed the extreme weather conditions—but because the law only protected drivers who refused to drive, and Maddin actually drove his truck. To back up this literalist reading of the statute, Gorsuch quoted the Oxford English Dictionary definitions of refuse, “to decline positively, to express or show a determination not to do something,” and operate, “to cause or actuate the working of; to work (a machine, etc.).”
Besides the tone deaf treatment of a man who could have died had he obeyed his dispatcher’s orders, what Gorsuch got wrong in TransAm is that dictionaries don’t define words with the law in mind, so their definitions won’t necessarily illuminate the wording of a statute.
The court’s majority countered Gorsuch's definition of operate with another, from the Oxford Dictionaries, “control the functioning of,” to support its reading that operating a vehicle can mean more than just driving it. Technically, you can operate a truck that’s parked at the side of the road (idling the motor, flashing the lights, raising and lowering a truck bed). And the court cited precedents involving drivers protected by the statute who refused to operate their vehicle as instructed, but operated it in a different fashion, in the interests of safety: moving a disabled truck off the highway after being told not to or partially unloading an overweight truck after being told to continue with an unsafe load.
The real problem with Gorsuch's "Frozen Trucker" dissent is not his use of dictionaries—that's just a distraction—but his literal reading of the statute. Gorsuch is an “originalist” who believes the law must be enforced exactly as written, with no improvising, even when the life of an employee is at stake. But he clearly missed the message that federal employee protection laws are on the books to protect employees, not employers. The law literally says that.
Maybe it's time for Gorsuch to re-read William Blackstone, the English jurist who believed laws should be interpreted sensibly, not literally. Blackstone influenced the original Framers when they began crafting American law, and today’s originalists often cite him to back up their interpretations. Here’s what Blackstone said about the problem with reading laws literally in “The Case of the Bolognese Bloodletter”:
Where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law . . . which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit. [Blackstone 1765, vol. I, p. 60]
Bloodletting was still a common medical treatment in Blackstone’s day. It was used on George III as well as George Washington, who was bled four times during his final, very brief illness. In the last of the bleeds, his physician drew a quart of blood from the first president, who may have had nothing worse than a bad sore throat.
Unfortunately, mindlessly literal interpretations of law abound beyond Bologna. A nineteenth-century law prohibiting the mailing of obscene books prompted Chicago postal authorities in the 1920s to reject a mailing of the city’s annual vice report. And more recently, in 2017, when the BBC decided to test how well Facebook policed itself by reporting 100 Facebook images of child sexual abuse to the company, Facebook reported the BBC to authorities because, as the company explained, “It is against the law for anyone to distribute images of child exploitation.”
Applied to the frozen trucker, Blackstone’s original rule of sensible interpretation means that a law protecting drivers who refuse to operate a vehicle when it’s dangerous to themselves or to the public should also apply to Alphonse Maddin for operating a vehicle when refusing to do so would put him in danger of freezing. To read it otherwise would be literally absurd.
Laws change slowly, but their interpretations must change continuously to accommodate unforeseen contexts and events. Flexible reading isn't judges making law, as conservatives always scream, it’s judges interpreting law, which is what we pay them to do. (Also, we don’t pay them to look up words in the dictionary—that’s something we can easily do ourselves).
Even Blackstone’s Bolognese Bloodletter looks different today. In the eighteenth century, surgeons could legally perform an emergency bloodletting on an Italian street, but if a doctor tried doing that in present-day Bologna, they’d be treated just like a medieval cutpurse or a modern mugger, because times have changed, and bloodletting is no longer an acceptable standard of care.
And just one more thing. In a very unoriginalist move, when he invoked dictionary definitions, Judge Gorsuch strayed from the language of the worker protection statute, twisting meanings to fit the interpretation he wanted. (That seems a lot like judges making laws.) According to Gorsuch, the law protects drivers who “decline to cause [their] vehicles to work” but it “just does not give employees license to cause those vehicles to work in ways they happen to wish but an employer forbids.” No, Judge Gorsuch, Alphonse Maddin didn’t decline to drive a frozen rig, the way one might decline a Supreme Court nomination. And he didn’t “happen to wish” to get warm, like wishing one had spent the extra money and bought the Canada Goose. Instead, Maddin refused an order that put him in physical danger by operating a vehicle, safely, instead of not operating it, dangerously.
