By admin 
Long before Neil Gorsuch was a Supreme Court justice casting pivotal votes in society-quaking decisions on everything from voting rights to affirmative action to abortion, he was that friendly “debate me” dweeb everyone tried to avoid in the college dorm. You know that guy? The one who seemed to lurk in the common area, waiting for anyone to come along so he could make a right-wing argument based on his own highly technical notion of what the rules are, no matter how ridiculous the result?
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Gorsuch would engage on any topic, but his favorite was abortion. According to his college freshman floormate Liz Pleshette, he was the guy who would argue that a pregnant 12-year-old who had been raped needed to carry the pregnancy to term, without any consideration for the reality of the situation, because “abortion is murder, Liz.” There’s a certain kind of guy who loves to debate abortion with liberal women, and Gorsuch fit the mold perfectly. When I spoke to her, Pleshette remembered that she would get upset from these interactions but he wouldn’t. “Even if he was vehemently arguing with you, it was laced with such civility and tight manners and politeness that you could be fooled into thinking that this is someone who is coming to the venture with loads of respect,” Pleshette told me.
When President Donald Trump nominated Gorsuch to the high court in 2017, even my Slate colleagues were taken in by this nice-guy act. In an episode of our podcast Amicus produced right after Gorsuch’s nomination, Mark Joseph Stern, Dahlia Lithwick, and Jeremy Stahl described him as a thoughtful jurist. All three agreed that Gorsuch was decidedly “not Lucifer,” as some progressives had painted him. As Stern put it at the time: “I think he’s a principled judge. I think he’s very conservative, but I don’t think he’s a rank partisan, like, for instance, Justice Alito.”
A decade later, this is a guy who has gutted the Voting Rights Act, ended affirmative action, and dismantled the constitutional right to reproductive care. He has written opinions that embrace outright falsehoods in the interest of letting a high school football coach force prayer in a public school. He has cleared the way for people to legally put up signs saying they will not serve gay people. He has ended up as one of the most consistently conservative justices on a very conservative court.
How does Gorsuch manage to do all of this without provoking the ire that some of his fellow right-wing justices receive? I think it’s mostly because no one knows who he is. He’s arguably the most anonymous member of the bench. “I would be shocked if a majority of Americans could identify him or even name him,” Stern told me. This conforms with polling, which estimates his at 6 percent.
Given all that Gorsuch has managed to do under that same guise of right-minded gentility from his college days, we ought to know who he is. Which is why today Slate is launching a new season of Slow Burn, Becoming Justice Gorsuch, exploring his life, judicial temperament, and character. He isn’t unknowable at all—and it’s crucial to understand what led up to his greater project on the Supreme Court.
Becoming Justice Gorsuch starts here. Episode 1 of the new Slow Burn season is out now. Slate Plus members get the whole season today.
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No case illustrates the dangers of Gorsuch’s form of judging—and the possible corrective to the Gorsuch method—like the most famous one he heard as an appeals court judge, before he even became a Supreme Court justice. That story, which has come to be known as the “frozen trucker” case, illustrates how the tweedy, polite geek can take the rules and apply them in a way that is pedantic to the point of absurdity, to all of our detriment.
The case began in 2009, when a trucker named Alphonse Maddin had just gotten a new job driving for the trucking company TransAm. On a cold January night, he found himself hauling a shipment of meat across several Midwestern states. Somewhere in Illinois, he realized that he was going to run out of gas, so he pulled over to the side of the road to try to find the nearest TransAm-approved station.
That’s when things started to go wrong. Maddin realized that the brakes on the trailer—the long shipping-container part of his truck—had frozen up. If he tried to drive with the vehicle like that, the trailer could swing out in either direction, posing incredible danger for anyone else on the road. So he called in to his dispatch center to report the problem and was told that someone would be sent to meet him and fix it.
But there was another problem. The heat in his cabin—the front part of the vehicle, where he was waiting—wasn’t working. And it was really, really cold: The temperature outside was −27 degrees. Maddin settled in, hoping that the repair truck would be there soon.
But the repair truck didn’t get there soon. Instead, Maddin fell asleep in the cold cabin. He woke up around 1 a.m. because his cousin was calling him. As Maddin explained what was happening, his cousin grew worried—he told him he was slurring his words. At this point, Maddin started to realize how cold he was. When he sat up, he heard the skin on his stomach crackle.
The temperature inside the cabin was now –7 degrees. He called the dispatch center again to explain the direness of the situation. The dispatchers continued to tell him to just hang in there and wait.
But Maddin didn’t feel that he could keep waiting. He was starting to worry that he would actually die out there, waiting on the side of the road, in the freezing cold.
So he did the only thing he could think of to do. He unhooked the trailer from the cab and drove to safety, leaving the trailer full of frozen meat on the side of the road. After he warmed up at a gas station, backup finally arrived to fix the brakes, and he returned to the trailer and got on his way.
Within a week, Maddin was fired. The trucking company said that he never should have left his load unattended. He filed a complaint with the Department of Labor to try to get his job back.
This is when Maddin’s story switches from a survivalist nightmare to a legal one. Even though the Occupational Safety and Health Administration had determined that Maddin was in the right, the trucking company kept appealing those decisions. Over the next seven years, the case went through court after court after court. Every single judge ruled in Maddin’s favor, but the trucking company kept appealing. Eventually, in the spring of 2016, the case landed in front of a three-judge panel on the U.S. Court of Appeals for the 10th Circuit, a federal court one step below the Supreme Court.
For Maddin, this stop at the 10th Circuit should have been the end of his legal nightmare—after hearing the case, two of the three judges ruled in his favor, saying that his choice to seek safety was covered under the federal law that protects truckers in dangerous conditions. But it was not the end—because of who the one judge who wrote a dissent in the case turned out to be.
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That judge was Gorsuch. Here’s why he ruled against Maddin: Gorsuch looked at that statute that protects workers when they are in conditions they deem dangerous. And he found that the statute says that if they feel they are in danger, they can “refuse to operate” their vehicle. And this was Gorsuch’s problem—Maddin hadn’t refused to operate his vehicle; he had in fact operated it, driving it to the gas station to warm up. And so Maddin shouldn’t receive the protection of this law, Gorsuch wrote. He was the only one of seven judges to come to this shocking conclusion.
A few months later, in January 2017, Gorsuch became Trump’s first nominee to the Supreme Court. The frozen trucker case would take on a life of its own during Gorsuch’s confirmation hearings. It gave Democrats opposed to his elevation something to hang their criticisms on. It also highlighted the judicial philosophy that had gotten Gorsuch noticed for this big job in the first place. We’ll get into how all that played out in the show, but right now, nearly a decade later, the case still raises some other big questions. Namely: These are the kinds of judges who are currently deciding the fate of our country? This is the kind of reasoning they’re using to radically alter the social fabric we all live in?
I started working in legal journalism right as Trump took office, which meant that one of the first major news stories I covered was Gorsuch’s nomination to the Supreme Court and his confirmation hearings. And that’s how I first learned about the frozen trucker case, which I have now been thinking about for almost 10 years.
Back then, I made an assumption that I think is really common for nonlawyers to make: I presumed that because I hadn’t gone to law school or studied for the bar, I simply was not equipped to figure out whether Neil Gorsuch’s ruling was reasonable. But I think that’s the kind of reasoning that can bring us to where we are now—deferring to an all-powerful set of unelected Oz-like figures to rule over us from afar.
After spending a long time figuring it out, I can tell you all the reasons why Gorsuch ruled the way he did in the frozen trucker case, even though his ruling is absurd on its face. (What else was Maddin supposed to do? Freeze to death to follow the letter of the policy?) But the main reason is that Gorsuch adheres to a specific philosophy in how to read the law, called textualism. Textualism insists that lawmakers’ intentions when writing legislation don’t matter—the only thing that matters are the words that end up on the page. Textualism is the guiding light of the conservative college debate nerd after law school. That’s why Gorsuch ignored the absurdity of the situation completely. Instead, he asserted that because the statute said only that a person could refuse to operate a vehicle and Maddin had operated the vehicle, he wasn’t protected.
If textualism leads to such absurd results, why is it the thing that is determining so much of our lives right now? Slate has spent a lot of time trying to answer this question—and I encourage you to go as deep as we have—but the main answer is that it’s the set of rules conservatives have made up so they’re more likely to succeed at achieving the narrowest, least generous, most parsimonious outcomes in case after case.
Regular people—and nonlawyers specifically—need to start engaging with these kinds of questions. We need to because the Supreme Court is currently the most powerful part of the government. Congress is not doing much. The executive branch is its own little mess. But SCOTUS? It is changing the fabric of American society. It just last month transformed how congressional districts can be drawn, a decision that will have dramatic consequences for minority representation in Congress and many other levels of government.
I understand that this is unfamiliar territory for a lot of us. That’s because some of this stuff is technical, and a lot of it is boring. Really, the conservative justices like Gorsuch are counting on this fact, hoping we just don’t spend much time thinking about it. That’s wrong, though. It is not too technical, and the justices do not have some magical power of insight. The frozen trucker case proves this more than any other.
There’s also a key assertion from these justices going around that in order for the judiciary to function, Americans must accept that it is outside the realm of politics as we traditionally understand it. This stems from the general idea of the separation of powers. In recent years, however, this concept has been taken to extremes that no longer make any sense, particularly when contemplating how politics has overrun the current court.
Consider this: Last week, New York Times columnist David French sat down with Gorsuch himself to interview him about the children’s book the justice has published in advance of America’s 250th birthday. (It’s called Heroes of 1776.) Here is how French prefaces the conversation:
When you talk to a judge, it is not like talking to a politician. You cannot talk about pending cases. You can’t talk about facts or circumstances that might be pending cases, and you definitely, absolutely cannot talk about politics.
What is going on here? Sure, yes, you can’t talk about pending cases, or the facts or circumstances behind those cases, with a sitting judge or a sitting justice. But the leap from “pending cases” to “politics, in its entirety” is quite large. This is a conservative columnist at the largest newspaper in the country sitting down with a Supreme Court justice days after he was part of a cohort of six conservative justices banding together to overturn a central part of the Voting Rights Act, and French is going to excuse himself from even having to pose a question about it because “you definitely, absolutely cannot talk about politics”? How are we defining politics here? I’m pretty sure the actions of the heroes of 1776 that Gorsuch writes about were political.
There is a bizarre universe built around the prestige and untouchability of the court that is first and foremost perpetuated by the people on the court. I think it starts from the same thing that inspired my own hesitation to declare the frozen trucker case absurd when I first heard about it. It starts from a belief that these people are operating in a world we don’t understand, and that we ought to leave alone, far from our base everyday politics and civic concerns.
But we are way past that point. As Becoming Justice Gorsuch will make clear, we are not living in an America where the justices sitting on the high court can claim to be completely apolitical actors. We are living in an America where there has been a lot of power exerted to seat these particular justices on this particular court, in moves that are the definition of politics. And then this court has handed down a number of rulings that are at odds not only with the American people’s views but also with rulings from previous courts, sometimes including decades and decades of precedent, for reasons that “the law” does not explain away.
However nicely these decisions and deciders are dressed up, the results have been absurd. If there’s anything I’ve learned from my time with the story of Justice Gorsuch, it’s that you do not need a law degree to see that.
Slate Plus members get early access to every episode of Becoming Justice Gorsuch, ad-free access to every Slate podcast, and the full Slow Burn archive, including Season 7’s Roe v. Wade and Season 8’s Becoming Justice Thomas. The season is the work of reporters who’ve covered the Supreme Court for decades, pulling the curtain back on the most unpredictable vote on the most powerful court in modern history. It’s a season that takes real time and real expertise. Slate Plus members make work like this possible. We hope you’ll join us. Become a member at the Slow Burn show page on Apple Podcasts or Spotify, or at slate.com/slowburnplus. And find all our Gorsuch games here!
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