I’m not sure who decided that the Democratic critique of U.S. Supreme Court nominee Judge Neil Gorsuch would be that he doesn’t side with the little guy. It’s a truly terrible idea. Like other liberals, I’m still shocked and upset that Judge Merrick Garland never got the vote he deserved after his nomination by President Barack Obama, and I’d rather have a progressive justice join the court. But the thing is, siding with workers against employers isn’t a jurisprudential position. It’s a political stance. And justices — including progressive justices — shouldn’t decide cases based on who the parties are. They should decide cases based on their beliefs about how the law should be interpreted.
Let’s start at the beginning. Way back in the beginning, in fact. The Hebrew Bible, which sides with the little guy a great deal, has something to say about parties to a case. Specifically, Deuteronomy 16:19 says judges shouldn’t “respect persons,” which is the King James Version’s translation of the Hebrew phrase that literally means “recognize faces.” Justice — which is mentioned in the famous next verse (“Justice, justice shalt thou pursue”) — requires judges to decide cases under the law, not based on preferences for individuals.
If the Bible doesn’t convince you, consider the whole point of a rule-of-law system: It establishes rules so that people can be confident in advance of how decisions are made. That creates regularity and predictability. And in the long run, it protects the little guy a lot better than a system rigged to favor one side, because such systems will naturally tend to favor the rich and powerful, not the poor and downtrodden.
Ensuring that the rule of law is followed is in fact the specific role of appellate judges, like Gorsuch. Trial judges find facts and also interpret the law. Appellate judges aren’t supposed to revisit facts determined by the trial court. They’re supposed to make sure the legal rules are applied consistently.
Looking at the Gorsuch decisions that the Democrats have made into their touchstones demonstrates how misguided their strategy is, legally speaking.
One of them, TransAm Trucking Inc. v. Administrative Review Board, involved the agency’s determination that a trucker had been wrongfully fired after refusing to stay with his truck on a cold winter night as directed by a dispatcher. The majority of the panel on the U.S. Court of Appeals for the 10th Circuit upheld the agency on highly creative grounds. The relevant law said the driver couldn’t be fired for refusing to operate his vehicle under the conditions set by the trucking company. The judges held that the driver, who drove away in his cab, had arguably refused to operate the vehicle — because the term “operate” in the statute was vague.
Gorsuch dissented. The panel had relied on the so-called Chevron doctrine, a special bugaboo of Gorsuch’s, in which judges defer to agencies’ interpretations of unclear laws. Gorsuch said the law wasn’t ambiguous as required by Chevron, because the driver was fired for failing to stay with his truck full of cargo, not for driving away.
I’m not sure Gorsuch was right — but his view was perfectly defensible, and it certainly didn’t seem to be driven by dislike of the driver. Rather, Gorsuch followed his preference for reading the law on its own terms and against Chevron. There’s nothing troubling about it.
Another case that progressives are citing involved denial of state funding for placement of an autistic child under the Individuals with Disabilities Education Act. Gorsuch wrote the opinion, reasoning that under binding Supreme Court precedent, the boy’s existing school placement was legally sufficient because he was making progress.
As it happens, the law regarding the proper standard to apply in such cases is uncertain — so much so that the Supreme Court is considering it this term. The 10th Circuit standard, which Gorsuch helped craft, may be too narrow; I certainly think so. But it’s a plausible reading of the existing precedent.
It would be nice if Gorsuch had pushed for a more inclusive, and arguably more progressive, standard. But it doesn’t show a lack of sympathy for autistic kids — especially when you consider that wealthier parents are better placed to go to court and challenge state determinations of what resources should go to their disabled kids.
The last case being mentioned, Hwang v. Kansas State University, raised the question of whether it’s a reasonable accommodation under the Rehabilitation Act to stay out of work beyond the term of six months’ leave granted by the employer. Grace Hwang, a professor at KSU, got the university’s maximum of six months’ leave as she underwent cancer treatment. She was about to return to work when a flu epidemic hit the campus. Concerned that she might get sick while immunocompromised, she requested further leave as a reasonable accommodation.
Gorsuch wrote for a unanimous panel that staying out of work beyond the six months wasn’t an accommodation at all, because accommodation requires you to do the job, and not coming to work isn’t doing the job. He reasoned that she could go on disability leave. As he put it, “Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address.”
That may sound somewhat harsh, but legally speaking, it isn’t shocking — and it might even be correct. Accommodation isn’t an endlessly flexible standard and, at some point, inability to work becomes a basis for disability. The statute could require longer sick leave but, as written, it doesn’t.
It’s perfectly fine to resist Gorsuch for not adhering to a progressive jurisprudence that takes seriously the government’s duty to regulate the market. But it isn’t fine to say he should side with workers against employers or parents against school districts. The rule of law isn’t liberal or conservative — and it shouldn’t be.
Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.