The case against Gorsuch: It’s all about precedent
© Greg Nash

The Gorsuch hearings have been a charade, but the results are far more ominous than non-experts would understand. 

Precedent has been the overriding standard that everyone has used, as if a judge who follows the rules and precedent is fine, and one who doesn’t is a certified rogue. But no one has tried to explore what rules and precedent actually are. Missing entirely was any understanding that precedent doesn’t tell us how broadly or narrowly it should be read. The whole game, however, is in the breadth, narrowness or exclusivity of rules and precedent.

Perhaps the best way to see what happened is through the discussion of the truck driver, Alphonse Maddin, who was experiencing hypothermia and nearly froze to death because his bosses told him to stay put on the side of the road with the weather 14 degrees below zero, the brakes on the trailer “locked up because of the frigid temperatures” and no heat because the auxiliary power unit also known as his bunk heater had failed. After two and a half hours, having lost sensation in his feet and torso, he finally unhitched the cab from the trailer and, without the trailer, drove the truck looking for help.


Federal law protects drivers who refuse to operate unsafe equipment. But what about a driver who drove his equipment to avoid an unsafe situation, to avoid freezing to death? There is no language in the regulations about drivers who drive for safety instead of refusing to drive for safety. Should the statute be read as about disobeying unsafe instructions or only about disobeying instructions to drive unsafe equipment?


Here we get into a subject professors discuss at length with their students in most law schools. What does ordinary language include? Your instructions to your baby-sitter are very common examples in legal discussion. Your baby is sick and shouldn’t go outside. You and I can think of many obvious examples where we would instinctively take our babies out of the house. The house is burning. It’s filling with gas. There’s an earthquake or, as happened to a relative of ours, a landslide leaving the house hanging over the cliff. Need I go on? 

Now have any of you actually prepared such a list and given it to your baby-sitter? Maybe you should, although if the list gets long it’s not clear the sitter would or could sit there and read it. But never mind; you never said anything about the exceptions. Should the baby-sitter run out of the house with your baby, sit there with your child, or run out alone, leaving your baby in the house? Is it really a hard question which is the good baby-sitter and which baby-sitter is too stupid or evil to be trusted with your baby?

Normal language is filled with assumptions about the right and humane way to behave. To speak to people as if they have to be educated about the obvious is demeaning. Do you want to start your relationship with your baby-sitter by treating them as if they’re dummies? Maybe after the Gorsuch hearings you’ll change your mind about what to say to baby-sitters. But, by and large, society couldn’t function if we had to address every contingency in advance. 

Judge Nathan Cardozo, then a celebrated member of the New York Court of Appeals and later a justice of the U.S. Supreme Court, in his famous Jacob & Youngs, Inc. v. Kent decision wrote that where insisting on the strict letter of language cannot be done “without a sacrifice of justice,” it can’t be treated that way “without a perversion of intention.” Cardozo continued, “Intention not otherwise revealed may be presumed to hold in contemplation the reasonable and probable.”

To put it another way, language ordinarily incorporates principles of decency and humanity. Judge Neil Gorsuch repeatedly tried to sound sympathetic, telling Sen. Al Franken that “I don’t blame him at all,” “I empathize with him entirely” and “I totally empathize and understand.” But Judge Gorsuch concluded that “the plain meaning” of the statute did not protect Maddin from freezing to death.

This is a generic divide in the law. Conservatives make language and history conservative by excluding those ordinary assumptions of language. They make decency have the burden of proof, where Cardozo would put that burden on the indecent.

And there is the underlying difference between a judge like Gorsuch and those more liberal. Gorsuch makes decency jump over hurdles. More liberal judges, probably like Judge Merrick Garland, whom the Republicans would not even bring up for hearings, would make indecency and inhumanity bear the burden of proof. There is nothing in the language of the law that requires judges to be mean.


Steve Gottlieb’s latest book is “Unfit for Democracy: The Roberts Court and the Breakdown of American Politics.’ A widely recognized constitutional scholar, he has served on the New York Civil Liberties Union board and the New York Advisory Committee to the U.S. Civil Rights Commission, and is the Jay & Ruth Caplan distinguished professor at Albany Law School.

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