Famously, during his contentious confirmation hearings, then-Supreme Court nominee Neil Gorsuch was dogged by then-Senator Al Franken about an opinion that Gorsuch had handed down against a truck driver who had been fired after abandoning his busted truck on a frigid night so he wouldn’t freeze to death. The court had decided in favor of the trucker. Gorsuch had dissented. From CNN:
“I don’t think you’d want to be on the road with him, would you judge?” Franken asked.
“Senator, um,” Gorsuch stammered.
“You would or not? It’s a really easy: ‘Yes’ or ‘no?’” he pressed.
Gorsuch dissented in the decision: “It might be fair to ask whether TransAm’s decision was a wise or kind one,” he wrote. “But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”
Franken called Gorsuch’s logic “absurd.”
“It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death or causing other people to die possibly by driving an unsafe vehicle,” said the former “Saturday Night Live” star. “Now, I had a career in identifying absurdity, and I know it when I see it and it makes me question your judgment. I would’ve done exactly what he did, and I think everybody here would’ve done exactly what he did,” Franken said.
Points of law aside, it was impossible to come to any conclusion other than, “Jesus, what a schmuck.”
The spirit of the truck-driver case has swirled around the chamber recently. Chief Justice John Roberts has sought to enact COVID protocols, including mask-wearing. There are a number of good and obvious reasons for this, but in particular, it was a concession to Justice Sonia Sotomayor, who is diabetic and therefore particularly vulnerable to COVID. All the justices have complied. Except one. Let NPR’s Nina Totenberg tell you which one.
It was pretty jarring earlier this month when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What's more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers…
...Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up. They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices' weekly conference in person, joining instead by telephone.
I’m sure there are some arcane restrictions on the Chief Justice’s power to demand compliance from the other justices, probably dating back to the day when Roger Taney showed up in a ball gown or something. But there’s something to be said for simplicity, too. I mean, Jesus, what a schmuck.
Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. He lives near Boston and has three children.
