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ANALYSIS

Rulings offer glimpse into what kind of justice Neil Gorsuch would be

Member of the Judiciary Committee Sen. Lindsey Graham meets with President Donald Trump's nominee for the Supreme Court Judge Neil Gorsuch in Washington in February.

MELINA MARA/THE WASHINGTON POST

By ROBERT BARNES | The Washington Post | Published: March 17, 2017

WASHINGTON - Some liberals wary of Judge Neil Gorsuch's fitness for the Supreme Court point to the Case of the Frozen Trucker. As an appeals court judge, Gorsuch ruled against a driver who claimed he'd been wrongly fired because he ignored his supervisor's demands by unhitching his unheated truck from its malfunctioning trailer and driving away in subzero weather in search of safety.

Here's a twist: Some conservatives supportive of Gorsuch cite the exact same case, in admiration.

In his more than a decade at the U.S. Court of Appeals for the 10th Circuit in Denver, President Donald Trump's nominee for the Supreme Court has written hundreds of opinions and participated in thousands of panel decisions.

A collection of liberal and conservative legal activists were asked by The Washington Post to narrow that voluminous jurisprudence to a handful that they say best illustrate how Gorsuch sees the law.

Somewhat surprisingly, their choices often matched.

For instance, the frozen trucker decision, in which Gorsuch was the lone dissenter among judges who considered the case, strikes the liberal Alliance for Justice as illustrative of "the efforts Judge Gorsuch takes in his judicial opinions to deny critical remedies to workers wronged by their employers."

But Carrie Severino of the Judicial Crisis Network, one of the leaders of the effort to confirm Gorsuch, sees the dissent as a principled interpretation of a statute, even when the facts include a sympathetic plaintiff. Liberals "would have liked him to find a way to skirt the law in such a case," according to Severino. "The fact that he wasn't willing to do so illustrates his integrity."

Gorsuch's 10-year record is unwieldy and, at the same time, incomplete. He has never issued on-point rulings on the kinds of issues that traditionally cause controversy in Supreme Court nominations: abortion, affirmative action, voting rights, the reach of the Second Amendment, same-sex marriage.

That doesn't mean there is disagreement over Gorsuch's ideology. Conservative legal groups enthusiastically endorse his approach to the law, certain that it reflects their view of gun rights, religious protections and support for business. Liberals are equally convinced Gorsuch is a danger to reproductive rights, inadequate on questions of discrimination and the kind of jurist who instinctively sides with corporate interests over the "little guy."

But beyond which side he might be on, Gorsuch's rulings give clues of the kind of judge he is, and perhaps promise a glimpse of the kind of justice he would be.

Those on both sides of the battle over Gorsuch's confirmation point in particular to three cases - a legal fight over funding Planned Parenthood in Utah, the deference courts should grant government agencies implementing a broad array of federal laws and the case of Alphonse Maddin, who left the load he was hauling by the side of a freezing Illinois highway. Both sides say the judge's three rulings deserve closer looks.

In 2015, Utah Gov. Gary R. Herbert, R, was like a lot of other politicians who said they were shocked by videos that purported to show officials of Planned Parenthood discussing the sale of fetal tissue from abortions.

Investigations would later show the videos were heavily edited, and the officials were cleared of wrongdoing. Although he acknowledged that the group's officials were not implicated, Herbert still tried to shut off the federal funds the state gave to the Utah organization.

A district judge said Herbert was within his rights to withhold the funds, about $250,000.

But a panel of the 10th Circuit reversed the lower court's decision. The judges said it was likely that Herbert saw the videos as an opportunity more than an outrage and that he opposed Planned Parenthood because it offered abortions, though no state or federal money was used to perform them.

After the panel ruled, Herbert said he accepted the loss, and the money for the organization's work on a disease-control and sex-abstinence program was restored.

But weeks later, one undisclosed judge requested the entire court review the panel's decision, even though the state had not asked for reconsideration and had "clearly moved on," in the words of Judge Mary Beck Briscoe, who had written the panel decision.

The judge almost surely was Gorsuch, because he later wrote a detailed opinion saying the panel's flawed decision should not have been allowed to stand.

He methodically but "respectfully" - he used the word seven times in a 12-page opinion - listed the panel's mistakes. It had not properly respected the district judge's findings; it had relaxed Planned Parenthood's burden of proof; it had discounted Herbert's explanation and failed to show "the sort of comity this court normally seeks to show the states and their elected representatives."

"It is undisputed that when the governor announced his decision to discontinue funding he contemporaneously explained that his decision came in direct response to the videos," Gorsuch wrote. "And it is undisputed, too, that the governor was free as a matter of law to suspend the funding in question for this reason."

The court voted 6 to 4 not to rehear the case.

When Trump announced Gorsuch's nomination to the Supreme Court, the judge won the endorsement of antiabortion groups. Those groups point as well to Gorsuch's opinion in two other cases that took the side of businesses and nonprofit organizations that said for religious reasons they could not offer contraceptive care to their employees.

Abortion rights groups took notice as well. And Caroline Fredrickson, president of the liberal American Constitution Society, said it was significant to her that Gorsuch had reached out to reopen a case that appeared settled.

"He just seems to be looking for reasons to make reproductive rights hard to access," she said.

Congress writes the laws, although often not very well. Sometimes, the words are ambiguous or unclear, and sometimes federal agencies are called upon to make decisions about how the law will be implemented.

In 1984, the Supreme Court decided a case called Chevron v. NRDC, and said that when the words of a statute are ambiguous, judges should defer to the expert opinions of the federal agencies charged with carrying out the law.

It is called "Chevron deference," and it is a phrase heard routinely in federal courts - the decision by Justice John Paul Stevens has been cited more than 15,000 times - and almost never outside of them.

But in a case involving the length of time an illegal immigrant named Hugo Rosario Gutierrez-Brizuela had to wait before trying to win lawful residence in the country, Gorsuch called for reconsidering Chevron. This is one area in which Gorsuch makes a significant break with the man he would succeed on the court - the late Justice Antonin Scalia - but one that endears him even more to some conservatives.

They fear that "Chevron deference" gives the executive branch an ability to write the law instead of simply enforcing it.

In a separate opinion, Gorsuch launched a broadside at the Chevron decision. Gorsuch wrote that the decision and a subsequent ruling along the same lines "permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design. Maybe the time has come to face the behemoth."

Some in the conservative legal movement have grown wary in part because they disagreed with what they called overly aggressive regulations put out by agencies controlled by President Barack Obama.

"The first Supreme Court nomination hearings of the post-Obama era may ultimately be remembered as focusing on Gorsuch's view of an issue that defines the Obama years: the modern administrative state," Adam J. White wrote in a glowing profile of Gorsuch in the conservative Weekly Standard.

Liberals are leery. Elizabeth Wydra, president of the progressive Constitutional Accountability Center, said that regardless of which political party controls the executive branch, deference to federal agencies helps make government work.

"It is also surely not a coincidence that progressives are far more likely than anti-regulation conservatives to use agencies to enact rules - and thus trigger Chevron deference - that promote the social safety net, combat discrimination, protect voting rights, and ensure clean air, unpolluted water, and safe food," she said.

Gorsuch said if the "goliath of modern administrative law were to fall," little would be lost.

"Surely Congress could and would continue to pass statutes for executive agencies to enforce," he wrote. "And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is."

Alphonse Maddin, the "frozen trucker," appeared with Democratic senators this week to highlight the human toll of Gorsuch's jurisprudence.

"Seven different judges heard my case - one of those judges found against me," Maddin said. "That judge was Neil Gorsuch."

Senate Minority Leader Charles E. Schumer, D-N.Y., said cases such as Maddin's show Gorsuch "prefers CEOs over truck drivers, executives over employers, and corporations over consumers."

The facts in Maddin's case are not in dispute. Hauling a load along Interstate 88 in Illinois for a Kansas-based trucking company, Maddin missed a refueling stop and pulled to the side of the road to decide his next step. In the subzero weather, the brakes on his trailer froze. He radioed for help, and the dispatcher told him to stay put and a repair truck would come.

Maddin said he awoke hours later in the unheated truck cab, numb and with his speech slurred. Ignoring orders, he unhooked the truck from the trailer and drove off to look for help. He turned around when the repair truck came.

Later he was fired.

An administrative law judge and a review board of the Labor Department concluded Maddin was fired in violation of whistleblower provisions. They protect 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 condition."

Gorsuch's two colleagues on the appeals court panel agreed Maddin's actions were consistent with "refusing to operate" his truck in a dangerous way.

But Gorsuch dissented. "The trucker in this case wasn't fired for refusing to operate his vehicle," Gorsuch wrote. Perhaps TransAm should not have fired him, Gorsuch said, but Maddin's only legally protected option was to sit and wait.

"There's simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid," Gorsuch wrote. "Maybe the [Labor] department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn't there yet. And it isn't our job to write one - or to allow the department to write one in Congress's place."

Edward Whelan, president of the conservative Ethics and Public Policy Center, said the lesson of the case should be that Gorsuch strictly follows the words of a statute despite the sympathetic nature of one of the parties.

"But even anyone who disagrees with his textualist approach would have to strain hard to depict his dissent as evidence that Gorsuch is hostile to workers," Whelan wrote in the National Review Online.

Critics say it is a devotion to text carried to extremes, and ignores that the intent of the law is to protect the health and safety of workers and the public.

Gorsuch "would have held that the truck driver had two choices - stay with his trailer indefinitely in subzero temperatures . . . or lose his job," said Daniel Goldberg, legal director at the Alliance for Justice. "To call his dissent callous and contrary to law would be an understatement."

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