BEING SURE AL FRANKEN’S SPAM FILTER WILL BLOCK THIS HEADLINE, NEVERTHELESS COMMENDING THE GREAT MAN ON A MOST OUTSTANDING ALLUSION
n. — “I know it when I see it.”
fm. Hellenistic Greek, an adjective referring to prostitution, and 19th-century French, pornographie, first related to prostitution, then obscene painting, then publications with descriptions of obscene matters.
first published. 1842
Now I had a career in identifying absurdity. And I know it when I see it. And it makes me—you know, it makes me question your judgment.
—Sen. Al Franken, Confirmation Hearings for U.S. Supreme Court Nominee Neil Gorsuch, March 21, 2017
Yes, let us turn our thoughts today to U.S. Supreme Court Justice Potter Stewart—Sen. Franken clearly has. Justice Stewart coined this famous definition of pornography in his concurrence in Jacobellis v. Ohio, 1964.
The case, oversimplified, questioned whether the government of Ohio could ban screenings statewide of a film it deemed obscene: Louis Malle’s The Lovers (Les Amants). While the Court ruled against Ohio, it was conflicted about the rationale.
Justice Brennan’s decision, joined by Justice Goldberg, ruled narrowly that the film itself was not obscene, and so protected by the First Amendment. Justice Black joined by Justice Douglas concurred, but with the much broader statement that the First Amendment prohibits any kind of censorship. Chief Justice Warren and Justice Harlan both issued dissents, leaving Stewart’s own unique approach to the case. He stated the First Amendment does protect obscenity except in the most extreme cases. How do you define an extreme case? See: above.
A fairly brilliant stroke of jurisprudence. The lamentable, extended result is that Stewart’s portrait will be forever placed above articles emblazoned with the word pornography. A tough gig in the internet age.
That brings us to yesterday’s Supreme Court confirmation hearings. What was so absurd?
Fifty-two years after Jacobellis, the United States Tenth Circuit Court of Appeals ruled on TransAm Trucking v. Administrative Review Board. The facts of the now-infamous “Frozen Trucker” case: On a sub-zero January night, the trailer brakes on Alphonse Maddin’s truck broke down, followed by the cabin’s heat. With the truck unsafe to drive, internal temperature dropping, Maddin waited on the roadside for TransAm to send a repair crew. Three hours later, numb from the waist down, with no crew in sight, he uncoupled the truck from the trailer and drove off. He was fired for abandoning the trailer.
The three-judge Tenth Circuit was asked to decide whether the trucking company was in its rights to fire Maddin or was Maddin’s job protected under whistleblower regulations saving 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 court ruled in Maddin’s favor. Not unanimously.
Judge Neil Gorsuch’s TransAm dissent is Exhibit A in claims that Gorsuch defends businesses over the little guy to an almost amoral extent. It’s a damning exhibit.
Gorsuch argued the regulation’s word “operate” can only be interpreted in this case to mean “drive” the truck, trailer and all. Since Maddin didn’t drive the whole truck, the protection does not apply.
What should have Maddin done? As Gorsuch wrote, “someone [at TransAm] gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above.” Nevermind that the second option, as the Tenth Circuit well knew, would lead to Maddin freezing to death. “None of the Above” is an awfully casual way to talk about manslaughter.
So, Sen. Franken, what was so absurd? Gorsuch thinks a man can be fired for choosing not to freeze to death. Or perhaps it’s just that Gorsuch doesn’t think context applies to legal decision-making. Or that, despite his many statements to the contrary as recently as yesterday, Gorsuch is willing to spontaneously rewrite regulations to suit his judicial needs, replacing “operate” with “drive.”
I don’t have to define absurdity. I know it when I see it.
Well played, Al. And very well said.