Category Archives: judicial behavior

Gorsuch’s bizarre “frozen trucker” opinion

Many people have commented on Gorsuch’s dissent in TransAm Trucking v. Administrative Review Board. Jed Shugerman presents a good account here. The case involved the interpretation of a law that forbids employers to fire an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public.” The truck driver in the case had pulled over to the side of the road and was in serious danger of hypothermia because the heater in his cab had broken down. The employer ordered him to stay put until a repairman arrived. After waiting hours, the driver unhitched the trailer and drove away to warm up, then returned to meet the repairman. The employer fired him.

The majority ruled that the employer violated the statute. While the driver operated rather than “refused to operate” the vehicle, the employer clearly retaliated against the driver for refusing to follow an order that would have put his safety at risk. Gorsuch dissents:

The term “refuse” means “[t]o decline positively, to express or show a determination not to do something.” 8 The Oxford English Dictionary 495 (2d ed. 1989). Meanwhile, “operate” means “[t]o cause or actuate the working of; to work (a machine, etc.).” 10 id. at 848. Putting this together, employees who voice safety concerns about their vehicles may decline to cause those vehicles to work without fear of reprisal. And that protection, while significant, just does not give employees license to cause those vehicles to work in ways they happen to wish but an employer forbids. Indeed, my colleagues’ position would seem to require the addition of more than a few new words to the statute. In their view, an employee should be protected not just when he “refuses to operate a vehicle” but also when he “refuses to operate a vehicle in the particular manner the employer directs and instead operates it in a manner he thinks safe.” Yet those words just aren’t there; the law before us protects only employees who refuse to operate vehicles, period.

Gorsuch’s weird literalism, so obviously in contradiction to the sense of the statute, is hard to fathom. By his logic, a driver who disobeyed an order to drive his truck at an unsafe speed and instead drove it at the speed limit would not be protected by the statute. Driving is “operating,” after all. The driver’s only recourse would be to stop the vehicle immediately–perhaps to pull the key out of the ignition so he won’t “cause the vehicle to work” by pulling it over. Gorsuch is too smart to make such a boneheaded error. What gives?

A clue appears in the peroration at the end of the opinion:

The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood. Maybe Congress found it easier to agree that an employee has a right to sit still in response to his employer’s order to operate an unsafe vehicle rather than try to agree on a code detailing when and how an employee can operate a vehicle in a way he thinks safe and appropriate but his employer does not. Maybe Congress would not have been able to agree to the latter sort of code at all. Or maybe it just found the problem too time consuming and other matters more pressing. Or maybe it just didn’t think about the problem at all. Whatever the case, 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.

Gorsuch is sending off signals to Federalist Society headquarters. He asserts, mainly in code, that he subscribes to textualism, the reigning conservative theory of interpretation. This is good to know, but it has nothing to do with the case. Even when Congress makes compromises, or rushes through drafting, or fails to anticipate every possible future contingency, it depends on courts to give a reasonable interpretation of its statutes. Otherwise, courts undermine those statutes rather than enforce them.

Does Gorsuch matter?

adlaw votes

One view is that he will be a Scalia clone or near-clone. But Gorsuch has hinted, in opinions and speeches, that he believes that Chevron was wrongly decided, and that the nondelegation doctrine should be revived. He also has, on several occasions, approvingly cited Justice Thomas’ concurring opinion in Association of American Railroads, which expresses similar sentiments. Scalia defended Chevron; Thomas criticizes it. If Gorsuch turns out to replicate Thomas rather than Scalia, this could make a difference, yes? We would now have two votes on the Court, rather than one, that firmly oppose the administrative state.

No. My friend and coauthor Lee Epstein ran the numbers, which you can see above. (Note: the data are preliminary.) Whatever their doctrinal differences, Scalia and Thomas are themselves clones in administrative law cases. Colleagues tell me that while championing Chevron, Scalia evaded Chevron deference (at least, when the regulation in question advanced liberal goals) by finding statutes to be clear that others find ambiguous. A clone of Thomas is a clone of Scalia.

The decline of supreme court deference to presidents

pres jus

The graph shows the win rate of presidents in the Supreme Court. The historical win rate was well over 60%, reaching nearly 80% during the Reagan administration. It has declined steadily since then, bottoming out at close to 50% for Obama. It is easy to predict that Trump will do even worse. A 20 year trend begs for explanation.

What could it be? Lee Epstein and I evaluate four hypotheses.

  1. Increasing ideological distance between the president and median justice? No.
  2. A Court beating back executive overreach? No.
  3. A Court engaging in overreach itself? Maybe.
  4. The rise of a specialized Supreme Court bar? Maybe.

We’ll need to do more work in order find out for sure. Selection effects are complicated. But this paper presents some initial findings.

Supreme court justices select their clerks on ideological grounds

chilton clerks

Or so it appears. The CFscore on the y-axis measures the clerk’s ideology (based on donations to political campaigns) from liberal (-2) to conservative (+2). Scalia is just an example but the trend is notable; the other justices are equally bad (or good, depending on your point of view). And it turns out that lower courts follow the pattern though not quite as strongly. From a new paper by Bonica, Chilton, Goldin, Rozema, & Sen.

How influential was Scalia, really?

I’ve read a lot of claims about Scalia’s influence over the development of the law. His fans insist that even if Scalia’s position did not always (or even usually) prevail in the major cases heard by the Court, his theories of constitutional and statutory interpretation have forced other justices and lower-court judges to write analytically tighter opinions. For reasons I’ve given elsewhere, I’m skeptical. But these things are heard to measure. Is there something measurable we can look at?

According to Jeffrey Toobin,

During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues.

If true, this seems like a damning indictment. A justice who, in insisting on the purity of his principles or perhaps in indulging in the charms of invective, gives up the opportunity to shape the law does more harm than good for his followers. To see if Toobin’s claim is true, I collected a list of “landmark cases” from Wikipedia (where else?), and asked an RA to count up the number of majority opinions written by each justice starting with Scalia’s first term in 1986, and excluding the justices who left the bench in the early 1990s. Normal empirical-research caveats apply. Here are the results:

landmark opinions

Scalia doesn’t look too bad. No surprise that the two chief justices would reserve many of the most important cases for themselves, and that Kennedy and Stevens—perennial swing-voters—would devour the lion’s share of the others. Still, in a right-leaning court Scalia hardly distinguishes himself.

Scalia has also been on the bench a lot longer than the others. Adjusting for years on the bench, one gets a more accurate view of his capacity to influence the law.

landmark opinions per year

Scalia does worse than Alito, his junior by many years, and barely surpasses Kagan, another junior who is hampered by her position on the left. Will Scalia go down in history as a justice whose ability to influence the law fell somewhere between that of Souter and O’Connor?

Are supreme court justices loyal to the president who appoints them?

justice loyalty

Yes. Lee Epstein and I report statistical results in our new paper. A justice is more likely to vote for the government when the president who appointed him is in office, than when subsequent presidents are in office–even when those subsequent presidents are of the same party (and controlling for a bunch of other things).

The figure above suggests an interesting U-shaped time trend as well. The x-axis shows the initials of justices in chronological order. The y-axis shows a measure of preference for the government under the appointing president over subsequent governments. Note that the figure excludes Obama and Bush appointees because they have not yet served under a same-party president subsequent to the one who appointed them.

King v. Burwell and ideological independence

Subject as always to confirmation bias, I’m going to interpret the votes in this case as further support for my argument that the Republican appointees are fragmenting. It’s striking that both Roberts and Kennedy joined the liberals.

partisan independence

See my earlier posts on this topic. What is the explanation? Here are a few (overlapping) possibilities:

1. Kennedy and Roberts are more ideologically moderate than the other Republicans.

2. Roberts is concerned about the legitimacy of the court.

3. Only the Republican appointees take the law seriously, and so are willing to disagree with each other. The Democratic appointees march in lockstep because they care about outcomes.

4. Sunspots; the alignment of the stars; tidal forces.