Judge Gorsuch’s confirmation hearing for his nomination to the United States Supreme Court begins today. He has been called “an originalist and a textualist,” someone with a “strong commitment to textualism.” He is repeatedly compared to the late Justice Scalia, a comparison that seems to have merit.
I am no fan of “originalism” or “textualism.” In practice, being an “originalist” or a “textualist” is a lot like being “gluten-free” except when it comes to pasta and bagels. There’s no consistent logic to these approaches and, just as bad, there’s no consistent application of them. I have yet to see a single judge or legal scholar in the United States who rigorously applies “textualism” to every case they see. Instead, most “textualists” are happy to apply these concepts rigorously when it will produce the result they want — but they’ll gladly relax them or ignore them if it produces a politically-inconvenient outcome.
As I explained at length back in 2012, Justice Scalia had no trouble abandoning “originalist” and “textualist” principles when it suited his political preferences. The list goes on and on: as I detailed in my post, he re-wrote the Federal Arbitration Act to create an irrebuttable presumption that destroyed State law in Concepcion, invented statutory provisions that Congress had deliberately omitted in the Food, Drug, and Cosmetics Act in Mensing (and tried to do the same in his dissent in Levine; Justice Thomas, applying a legitimate textualist interpretation in his concurrence, found exactly the opposite), and re-wrote the Federal Rules of Civil Procedure in Iqbal and Dukes.
Justice Scalia had the same disdain for the Constitution itself. He had no trouble interpreting the Ninth Amendment to be meaningless because it was “far removed from affirming any [rights], and even further removed from authorizing judges to identify what they might be.” He had no trouble abandoning the text of the Eleventh Amendment because “we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty.”
Can we expect the same from Judge Gorsuch? There are some troubling signs that Judge Gorsuch’s commitment to “textualism” waxes and wanes depending on the issue.
In Thompson R2-J School District v. Luke P., Judge Gorsuch was presented with a challenge under the Individuals with Disabilities in Education Act. Prior courts had looked at the Act and the Supreme Court precedent, which said disabled children needed access to school that was “meaningful,” and found “[t]he use of the term ‘meaningful’ indicates that the [Supreme] Court expected more than de minimis benefit.” Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988). Another court in the 10th Circuit, which is Judge Gorsuch’s Circuit, agreed “the ‘benefit’ conferred by the [IDEA] and interpreted by Rowley must be more than de minimis.” Urban by Urban v. Jefferson Cty. Sch. Dist. R-1, 89 F.3d 720, 726–27 (10th Cir. 1996)(quoting Polk). In other words, the Supreme Court said the benefit has to be “meaningful,” and other courts had made clear that a “de minimis” benefit wasn’t good enough.
Judge Gorsuch completely turned that precedent around, saying “we have concluded that the educational benefit mandated by IDEA must merely be ‘more than de minimis.’” Thompson R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1149 (10th Cir. 2008)(quoting Urban by Urban). Judge Gorsuch’s addition was crucial: saying “the educational benefit mandated by IDEA must merely be ‘more than de minimis” is entirely different from saying the benefit must be “meaningful” and can’t be “de minimis.” He flipped the Supreme Court’s analysis on its head, forcing the child with a disability to show the benefit was “merely de minimis” instead of applying the Supreme Court precedent, which required the school to show it was “meaningful.” The Supreme Court had a hearing on this very issue in January, and even Justice Alito was stumped, wondering, “What’s the origin of this phrase, ‘More than de minimis’? Who thought this up?” On March 22, 2017, in Endrew F. v. Douglas County School District, the Supreme Court unanimously reversed Judge Gorsuch’s “merely more than de minimis” standard.
Similarly, in Caplinger v. Medtronic, Inc., 784 F.3d 1335 (10th Cir. 2015), Judge Gorsuch was presented with a personal injury claim involving Medtronic’s Infuse implant. The Infuse is a synthetic spinal bone implant approved for a narrow purpose based on dubious research data later revealed by lawsuits, investigative reporting by the Journal Sentinel, and a comprehensive review by The Spine Journal. Thanks to Medtronic’s aggressive and illegal “off-label” marketing campaign, it became one of the most common procedures in the country. More than 85% of the procedures performed were “off-label,” meaning they were for purposes unapproved by the FDA. Under Supreme Court precedent, a plaintiff can sue for injuries caused by a medical device covered by the Medical Device Act as long as the claims aren’t “different from, or in addition to the requirements imposed by federal law.” Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008). Off-label marketing is blatantly illegal, and so the plaintiff in Caplinger alleged that the off-label marketing (which was also deceptive) violated federal law.
Judge Gorsuch spent a while complaining about how the Supreme Court had interpreted the Medical Devices Act, see Caplinger, 784 F.3d at 1337-1340, saying in his usual folksy style that “it’s no small mystery why the same word—‘any’—should bear such different meanings in two such similar clauses that lie cheek by jowl in the same statutory subsection.” Id. at 1340. After spending several pages musing about “the question of statutory purpose” and explaining why he disagreed with the Supreme Court’s interpretation of the word “any,” he simply ignored the Supreme Court, holding, “by its terms, the statute preempts any effort to use state law to impose a new requirement on a federally approved medical device.” Id. at 1344 (emphasis in original). Nevermind, too, that the requirement wasn’t “new,” because the device had been marketed in violation of federal law.
Even when Judge Gorsuch applies “textualism,” he does so in a way that leaves much to be desired. As Roger Parloff discussed, Judge Gorsuch’s dissent in TransAm Trucking, Inc. v. Admin. Review Bd., United States Dep’t of Labor, 833 F.3d 1206 (10th Cir. 2016) suggests a view of “textualism” in which judges can interpret Congressional statutes using a dictionary instead of the actual purposes stated by Congress if the judge would prefer the dictionary result.
In TransAm, a trucker was hauling a trailer in subzero conditions when the brakes on his trailer froze. The trucker pulled over called in the problem and was given two options: either break the law and endanger the public by continuing on his trip anyway, or sit and wait for help. After waiting almost three hours with no heat, the truck driver couldn’t feel his feet and was slurring his speech. He asked if he could detach from the trailer and drive to someplace warm and was told again to “hang in there” for some indefinite amount of time. He couldn’t without further imperiling his own safety, so he detached the trailer, drove the truck to safety and warmth, and drove back when the repair person arrived. The trucker was then fired for “abandoning his load while under dispatch.” Both an administrative law judge and the Department of Labor Administrative Review Board concluded the trucker was terminated in violation of the whistleblower provisions of the Surface Transportation Assistance Act (“STAA”) because 49 U.S.C. § 31105(a)(1)(B)(ii) makes it unlawful for an employer to discharge 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.”
Two of the three judges on the 10th Circuit panel affirmed, but Judge Gorsuch dissented. Judge Gorsuch excused the employer’s demand that he drive an unsafe truck with frozen brakes as a “maybe sarcastically offered option,” then argued that the trucker wasn’t protected because “[t]he trucker in this case wasn’t fired for refusing to operate his vehicle.” Id., 833 F.3d at 1215–16 (emphasis in original). Judge Gorsuch admitted that “operate” wasn’t defined anywhere in the STAA, but nonetheless criticized his colleagues for looking to the purposes of the STAA in trying to figure out what it meant: “To be sure, my colleagues invoke the statute’s purposes—employee ‘health’ and ‘safety’—and suggest the result they reach is consistent with them.” Instead, Judge Gorsuch argued that his preferred dictionary definition should prevail (“‘operate’ means ‘[t]o cause or actuate the working of; to work (a machine, etc.).’”) because “there are countless cases finding a statute unambiguous after examining the dictionary definition of its terms.” Id.
When we compare Caplinger and TransAm, it’s hard to avoid the conclusion that Judge Gorsuch is picking and choosing his “textualist” tools to create a particular result. For Judge Gorsuch, “statutory purpose” is enough of a reason to ignore the Supreme Court when ruling in favor of a medical device manufacturer that broke the law, but “statutory purpose” isn’t enough of a reason to rule for a trucker driver who was fired for refusing to break the law. This isn’t to say Judge Gorsuch’s opinions are all bad. In Cook v. Rockwell Intern. Corp., 790 F.3d 1088 (10th Cir. 2015), the operators of a nuclear plant mishandled radioactive waste, thereby contaminating the water and soil of homeowners around the plant. Putting aside the ridiculously complicated procedural history, the plant owners tried to have their cake and eat it, too, arguing that they did not cause a “nuclear incident” as defined by the Price-Anderson Act but that the Act nonetheless preempted the plaintiffs from prevailing on a state law nuisance claim. Judge Gorsuch disagreed, finding there to be no “implied preemption.” Id., 790 F.3d at 1103 (“the Price–Anderson Act does not preempt and preclude a freestanding state law nuisance claim when a nuclear incident is alleged but unproven”). Frankly, a genuine “textualist” would never find implied preemption; the whole reason it’s called “implied” is because it involves judges pretending a statute says something it doesn’t actually say.
I’d like to remain the eternal optimist. If Judge Gorsuch is confirmed to the Supreme Court, then he’ll have a unique opportunity to do what Justice Scalia should have done: prove that “originalism” is more than just a buzzword and that “textualism” is more than just a gimmick.