It’s a joke, guys. The Fascism Forever Club Neil Gorsuch founded at his elite all-boys D.C. prep school was just for fun.
His Columbia quote was not. It’s from Kissinger in the Nixon era: “The illegal we do immediately; the unconstitutional takes a little longer.”
They say there’s a grain of truth in every joke. Now that we have an idea of a young Gorsuch’s temperament toward American jurisprudence, let’s see how he did in his 10-year career as a judge on the 10th Circuit Court of Appeals.
Last year’s “Frozen Trucker” case, i.e. TransAm Trucking Inc. v. Administrative Review Board (2016), is a great example of Judge Gorsuch applying his view of textualism to ignore the law.
In TransAm, a truck driver was hauling a trailer in -14ºF temperatures in Illinois when the brakes on the trailer froze. He pulled over, called his company for help, and was given two options: Drag the trailer down the highway with frozen brakes (“an illegal and maybe sarcastically offered option,” Judge Gorsuch wrote) or wait for help.
So he waited. Three hours later, his feet were numb and his speech was slurred. He called in again. He asked if he could drive somewhere warm, but again, he was told to “hang in there.” Fearing for his life, he unhitched the trailer and drove the truck to warmth and safety.
He was fired for “abandoning his load while under dispatch,” even though he drove back to the trailer when the repair person arrived.
So he filed a lawsuit for violation of the Surface Transportation Assistance Act, which makes it illegal 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 because of the vehicle’s hazardous safety or security.”
Two out of three judges on the 10th Circuit sided with the truck driver. Judge Gorsuch sided with the employer who fired him.
“The trucker in this case wasn’t fired for refusing to operate his vehicle,” Judge Gorsuch wrote. He was fired because he “chose instead to operate his vehicle in a manner he thought wise.”
Let that sink in for a minute.
Judge Gorsuch said the only way the trucker could have kept his job was by freezing to death in the cab. He picked out five words — “refuses to operate a vehicle” — and ignored the rest of the law.
He pulled up a dictionary definition of the word “operate” and ignored the definition of the word “vehicle,” which can mean a truck or a trailer. The law clearly covers refusing to operate a trailer with frozen brakes.
Senator Al Franken of Minnesota had sharp words for Judge Gorsuch in confirmation hearings this week:
Everyone here would have done exactly what he did. It is absurd to say this company is in its rights to fire him. I had a career in identifying absurdity, and I know it when I see it. And it makes me question your judgment.”
The “Frozen Trucker” got a lot of attention this week, but in the end the trucker won his lawsuit. A woman named Patricia Caplinger was not so lucky.
Hopefully you will never face the life-or-death decisions of a trucker in the night, but there is a very good chance that you will someday be treated with a high-risk medical device, or you have one right now. Pacemakers, breast implants, Essure — all of them are “high-risk.”
Judge Gorsuch in Caplinger v. Medtronic (2015) stripped every American of their right to file a lawsuit against a manufacturer for injuries that were caused by high-risk medical devices, even if that manufacturer broke federal laws to get it approved and in your body.
High-risk medical devices (“Class III”) can only be sold if they get Premarket Approval (PMA), the strictest level of FDA approval.
In exchange, the Supreme Court ruled in Riegel v. Medtronic (2008) that manufacturers of PMA-cleared high-risk devices are immune from injury lawsuits, so long as the claims are not “different from, or in addition to the requirements imposed by federal law.”
Patricia Caplinger was injured by Medtronic’s INFUSE Bone Graft, a high-risk device that stimulates bone growth in the spine. Medtronic aggressively marketed it for spinal surgeries that were not approved by the FDA, in violation of federal laws against “off-label” marketing.
Caplinger filed a lawsuit for injuries that occurred as a result of her “off-label” spinal surgery. Judge Gorsuch shot her down. He wrote, “by its terms, the statute preempts any effort to use state law to impose a new requirement on a federally approved medical device” — completely ignoring the fact that the requirement wasn’t “new” because INFUSE was marketed illegally.
Riegel is not good for injury lawsuits, but at least it makes sense: States can’t impose higher safety requirements than the FDA. We can thank the late Supreme Court Justice Antonin Scalia for that.
Judge Gorsuch in Caplinger doesn’t make sense: He is saying states can’t impose any safety requirements on PMA devices, after spending several pages deciphering what the word “any” means.
He picked out the part in Riegel giving the highest level of legal immunity to the highest-risk devices — but just as he did in the “Frozen Trucker” case, Judge Gorsuch ignored the rest of the law. He specifically ignored the Supreme Court’s exception for injury lawsuits involving “violations of the requirements imposed by federal law.”
Not only does Caplinger subvert the law, it jeopardizes the safety of all Americans by eliminating the threat of lawsuits against manufacturers who do whatever it takes to get a dangerous device in your body.
I would like to be optimistic, but the evidence points toward Judge Gorsuch picking and choosing his application of “textualism” in a way that is not fair. He is willing to rule in favor of a medical device manufacturer who breaks the law, but not a truck driver who refused to break the law to save his own life and your life on the highway.
That kind of justice has no place on the U.S. Supreme Court.