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Gorsuch and the primacy of common sense

by Philip Martin | March 26, 2017 at 1:54 a.m.

I'm an originalist and a textualist, not a nut.

--Antonin Scalia

Most of us don't consider moral or legal principles as we go about our business; most of the time we have an outcome and mind and rationalize the means we employ in its pursuit. That's not to say we're corrupt, just that the navigation of daily life requires us to be pragmatic.

For instance, a situation has arisen lately with my parking lot.

Like most people who work in an urban area, I pay a company for the right to leave my car in a space a couple of blocks from my office. I like this lot--I could pay a little more and park slightly closer, in a somewhat larger lot that's owned by the same company. But walking an extra hundred yards or so doesn't bother me--even if the two lots cost the same I think I'd prefer my smaller lot.

But lately, I haven't always been able to park in my lot. There's construction work going on downtown, and the construction workers have taken to parking in my lot. These days it's a 50-50 shot as to whether there will be an empty space in my lot when I drive in to work. When there isn't, I pull into the larger, more expensive and arguably more convenient lot. And nobody has said anything about this.

My wife Karen--who doesn't come to or leave work at the same time I do--also parks in the smaller lot. She also encounters the same problem, and solves it the same way. The difference is, that the first time she parked in the larger lot, she called the parking company and told them what she was doing. And they agreed it was a reasonable thing to do.

But I didn't call. I probably should have. I suppose I should have done something, maybe leave an explanatory note on my windshield. But I haven't, and the parking company hasn't ticketed or towed me--even though they may be legally allowed to take these actions. After all, I'm parking in a space for which I haven't paid.

They don't take these actions because they're reasonable people who understand that circumstances change over time, and that it doesn't always make sense to adhere to strict terms of an agreement. I've rented a parking space from them, and since they can't provide it in the agreed-upon lot it makes sense that they furnish me with an alternative. While they could ask me to pay the going rate for the lot I'm now parking in, since I've only done it for a few days and the construction crews will sooner or later move out of the old lot (which wasn't near capacity before they moved in) it would probably seem foolish to risk alienating a good customer over what might amount to a couple of dollars.

Now is it wrong for me to park in the bigger lot? I don't think so. But it does contravene the letter of the contract that exists between me and the parking company. So a judge who self-identifies as a legal textualist might feel compelled to rule against me.

That's the position Neil Gorsuch found himself in when writing his dissent in TransAm Trucking v. Administrative Review Board, the "frozen trucker" case that came under scrutiny during the judge's Supreme Court confirmation hearings last week. In that case, the brakes on a trailer being towed by a truck froze up late on a January night with sub-zero temperatures. The driver, Alphonse Maddin, called his bosses to report the problem, and was instructed to wait for their road service. He then fell asleep.

When he woke up two hours later, his arms and legs were numb from the cold. He called for help again, and was told to "hang in there." He waited for 30 minutes longer before uncoupling his truck from the trailer and driving off to a gas station where he took shelter. A service truck arrived about 15 minutes after he left--about three hours after the initial call for help. The company fired Maddin for insubordination. He sued, citing the rules of the U.S. Department of Labor, which say a truck driver can't be fired for refusing to operate his vehicle because of safety concerns.

Gorsuch held that Maddin did "operate" his vehicle--he drove his truck away from the broken-down trailer to safety. The other judges, the prevailing majority, were willing to cut Maddin a break and interpret "operate" as driving both the truck and the trailer, especially in light of a company representative's possibly sarcastic suggestion that he drag the trailer with the locked-up brakes along with him.

Some conservative ideologues might view the majority's interpretation as usurping the democratically elected legislature's right to make law. Gorsuch maintains that his job as judge is to be a passive interpreter; the letter of the law required him to come up with his ruling. It might have been wrong or immoral for TransAm to fire Maddin under the circumstances, but it was legal. If he wanted to keep his job, he should have continued to risk his life. (I've heard other heartless opinions advanced. Some people think if you can't afford to get sick you should just die.)

But most of us, even Antonin Scalia, the justice whose spot on the court Gorsuch will likely fill, have a less cynical view of the role of government. Given the real-world consequences, it's doubtful that even Scalia, who at times reveled in absurdity, would have come to the same conclusion as Gorsuch did in TransAm.

The trouble with reductionist ideologically driven ideas is that when bright line rules are applied to a complicated world, they invariably result in absurdities. (See the "no tolerance" rules that have suspended children for shaping pastries into vaguely gunnish forms and the like.) Conservatives as well as liberals need to recognize the primacy of common sense.


Editorial on 03/26/2017

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