Many people have commented on Gorsuch’s dissent in TransAm Trucking v. Administrative Review Board. Jed Shugerman presents a good account here. The case involved the interpretation of a law that forbids employers to fire an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public.” The truck driver in the case had pulled over to the side of the road and was in serious danger of hypothermia because the heater in his cab had broken down. The employer ordered him to stay put until a repairman arrived. After waiting hours, the driver unhitched the trailer and drove away to warm up, then returned to meet the repairman. The employer fired him.

The majority ruled that the employer violated the statute. While the driver operated rather than “refused to operate” the vehicle, the employer clearly retaliated against the driver for refusing to follow an order that would have put his safety at risk. Gorsuch dissents:

The term “refuse” means “[t]o decline positively, to express or show a determination not to do something.” 8 The Oxford English Dictionary 495 (2d ed. 1989). Meanwhile, “operate” means “[t]o cause or actuate the working of; to work (a machine, etc.).” 10 id. at 848. Putting this together, employees who voice safety concerns about their vehicles may decline to cause those vehicles to work without fear of reprisal. And that protection, while significant, just does not give employees license to cause those vehicles to work in ways they happen to wish but an employer forbids. Indeed, my colleagues’ position would seem to require the addition of more than a few new words to the statute. In their view, an employee should be protected not just when he “refuses to operate a vehicle” but also when he “refuses to operate a vehicle in the particular manner the employer directs and instead operates it in a manner he thinks safe.” Yet those words just aren’t there; the law before us protects only employees who refuse to operate vehicles, period.

Gorsuch’s weird literalism, so obviously in contradiction to the sense of the statute, is hard to fathom. By his logic, a driver who disobeyed an order to drive his truck at an unsafe speed and instead drove it at the speed limit would not be protected by the statute. Driving is “operating,” after all. The driver’s only recourse would be to stop the vehicle immediately–perhaps to pull the key out of the ignition so he won’t “cause the vehicle to work” by pulling it over. Gorsuch is too smart to make such a boneheaded error. What gives?

A clue appears in the peroration at the end of the opinion:

The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood. Maybe Congress found it easier to agree that an employee has a right to sit still in response to his employer’s order to operate an unsafe vehicle rather than try to agree on a code detailing when and how an employee can operate a vehicle in a way he thinks safe and appropriate but his employer does not. Maybe Congress would not have been able to agree to the latter sort of code at all. Or maybe it just found the problem too time consuming and other matters more pressing. Or maybe it just didn’t think about the problem at all. Whatever the case, it is our job and work enough for the day to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.

Gorsuch is sending off signals to Federalist Society headquarters. He asserts, mainly in code, that he subscribes to textualism, the reigning conservative theory of interpretation. This is good to know, but it has nothing to do with the case. Even when Congress makes compromises, or rushes through drafting, or fails to anticipate every possible future contingency, it depends on courts to give a reasonable interpretation of its statutes. Otherwise, courts undermine those statutes rather than enforce them.