Will Justice Neil Gorsuch help President Trump fulfill his promise to be the President for working people? A 2016 decision in a case filed by a truck driver answers this question decisively.
In January 2009, the brakes on the trailer of a truck operated by Alfonso Maddin froze because of subzero temperatures, causing the wheels to jam. Late in the evening he reported the frozen brakes to his employer, Trans Am Trucking, which advised him that a repair person would be sent to his location. Mr. Maddin fell asleep in the truck (one of the last things to occur before your organs start shutting down) but was awakened two hours later when he received a phone call from his cousin. His cousin reported that Maddin's speech "was slurred and he sounded confused." His torso numb and his feet insensate, Maddin called his employer again and told the dispatcher that his bunk heater was not working. After describing his deteriorating physical condition, he asked when the repair person would arrive. The dispatcher told him to "hang in there."
About 30 minutes later, realizing he was freezing to death, Maddin unhitched the trailer from his truck, pulled the truck away, called his supervisor, and told him that he couldn't feel his feet and was having trouble breathing because of the cold. His supervisor told him repeatedly to turn on the heating unit even though Maddin explained that it was not working. When Maddin said he was leaving to seek help, his supervisor ordered him either to drag the trailer with its frozen brakes or remain until a repair person arrived. He followed neither instruction and drove off, leaving the trailer unattended.
One week later, Trans Am fired Mr. Maddin for abandoning his load.
Following his termination, Mr. Maddin filed a complaint with the Occupational Safety and Health Administration. An Administrative Law Judge, The Department of Labor Administrative Review Board, and in a decision circulated August 8, 2016, the Tenth Circuit Court of Appeals agreed that the discharge was unlawful.
Judge Gorsuch dissented. Noting that his employer had given him the option to drag the trailer to its destination or sit and wait for help, Judge Gorsuch chastised the driver for choosing neither. Judge Gorsuch pointed out that the statute only forbids employers from firing employees who "refuse to operate a vehicle" out of safety concerns. Noting that Mr. Maddin made the “unpleasant” choice to “operate the vehicle” to avoid freezing to death, Judge Gorsuch smugly pointed out that the court was wrong in determining that Trans Am had acted illegally when it fired Mr. Maddin. After all, he never “refused” to operate the vehicle!
In part because of his icy dissent in this case, organized labor fiercely and unsuccessfully opposed Gorsuch's nomination to the Supreme Court, which will hear arguments on February 26 on whether to end a 41‑year-old ruling that allowed states to require government employees who do not want to be union members to pay their “fair share” for activities undertaken by the union on behalf of all workers, not just its members, such as collective bargaining and handling grievance procedures. The matter previously came before the court, which split four to four, and was not decided due to the death of Justice Scalia. Justice Gorsuch now will be the deciding vote that may end the financial viability of government unions.
Justice Gorsuch is unlikely to be influenced by the brief filed by three Noble Prize-winning economists and 33 other scholars, who described this as a classic "free-rider" problem in which "many who undisputedly benefit will nevertheless withhold their contributions out of simple self-interest, and others will withhold their contributions to avoid being taken advantage of by the free-riders."
If Justice Gorsuch felt that Trans Am was perfectly justified in firing an employee for refusing to freeze to death, the chance that he will rule against free-riders is nil.