Monday, May 15, 2017

Pardon The Interruption

     A recent article in the New York Times by Adam Liptak reported on a 15-year study concerning oral argument at the United States Supreme Court.  The study, soon to be published in the Virginia Law Review, was conducted by law professor Tonja Jacobi and law student Dylan Schweers, both from Northwestern University.  They conclude that so-called “conservative justices interrupt liberal justices at significantly higher rates than liberal justices interrupt conservatives.”  And I guess conservative justices interrupt their conservative colleagues less often than they interrupt their liberal colleagues.  For the sake of discussion, I suppose these easy labels have a measure of legitimacy. 
         What a revelation.  I thought this interrupting phenomenon as it occurs in the general public was the other way around.  At least that was my impression when I was a law student at Berkeley in the sixties.  I and all my like-minded liberal friends spent most of our time interrupting one another.  I soon discovered that this practice did not foster learning.  When bullhorns made their appearance on the Berkeley campus, I began losing my hearing and my mind.  The din foreclosed reasoned discourse.  The Free Speech Movement restrained my speech.  The cost was so high, it drove me out of Berkeley.
         Professor Jacobi told the Times that “interruptions are generally considered an aspect of dominance, and the conservatives feel dominant over the liberals.”  Jacobi points out that “conservatives have dominated the court for the past 50 years.”  Looking back at the court some 60 or so years ago, I wonder if Justices Warren, Black, Douglas, Brennan, and Marshall interrupted their less liberal colleagues more than the other way around.
         Jacobi and Schweers land another shocker in the April 11, 2017 edition of the Harvard Business Review.  Reader discretion advised:  “[M]ale justices interrupt female justices approximately three times as often as they interrupt each other during oral arguments.”  The study covered not just the current Supreme Court, but the court in 1990, when Sandra Day O’Connor was the only woman on the court.  The court’s practice then, and in 2002 and 2015, reflects a pattern of male justices consistently interrupting female justices at a far higher rate than they interrupt their male counterparts.  And as the years progress and the number of female justices increases, so too have the number of interruptions by male justices. 
         The authors believe that Justice Gorsuch will fall within the current pattern based on his senate hearings.  The authors write: “He could not help repeatedly interrupting the liberal female senators.” 
         Speaking of Justice Gorsuch, his name came up during a casual conversation at the El Tovar Hotel at the Grand Canyon this past January.  I was having dinner in a private dining room with the singing group “Singers In Law.”  We were celebrating the birthday of attorney and singer Linda Hurevitz who came up with the catchy title.  The other members of the singing group are attorneys John Blumberg, Ken Freundlich, and Barbara Gilbert, who is not an attorney, but is married to a judge, and sometime ago was a court reporter.
         None of us knew it at the time, but the Singers In Law would sing the Star Spangled Banner before thousands of cheering fans at the L.A. Kings game at Staples Center on April 2nd.  Justice Gorsuch may have had something to do with it.  So while we were having dinner, Philip Anschutz, who has an ownership interest in the Kings, Staples Center, the El Tovar Hotel, and a few thousand other enterprises, walked in and said, “Excuse me, but did you know that Teddy Roosevelt once dined in this room?”  He then introduced himself.  We had a nice chat with him and his charming wife Nancy.  Our convivial conversation covered the history of the Grand Canyon.
         He asked me if I knew a good friend of his on the 10th Circuit, Judge Neil Gorsuch.  “Gorsuch? Mmm, don’t know him.”  Funny how quickly things change.  Anschutz asked about us, and there you have it. 
         The Star Spangled Banner is a tough song to sing, especially a cappella. The Singers In Law brought the house down.  And people of widely differing political beliefs cheered.  Might be a good foundation for reasoned discourse without interruptions.
         Enough wishful thinking.  Getting back to Justice Gorsuch.  After his senate hearings, I read the case for which he was given heat for his “cold” dissent, TransAm Trucking v. Admin. Review Bd., U.S. Dept. of Labor (2016) 833 F.3d 1206.  An employee was fired by his trucking company employer for disobeying an order of the employer.  The employee was transporting cargo in a tractor-trailer for his employer in the late evening hours “when the brakes on his trailer froze because of subzero temperatures.”  (P. 1208.)  At the employer’s direction, he waited several hours for help to arrive.  The heater in his cab was not working.  He fell asleep and then awakened when he received a phone call from his cousin.  His torso was numb and he could not feel his feet.  He called his employer who told him to either wait or “drag the trailer with its frozen brakes.”  (P. 1209.)  Instead, the employee “unhitched his truck from the trailer and drove away, leaving the trailer unattended.  He was terminated for abandoning the trailer.”  (P. 1208.)
         The majority agreed with the decision of the Administrative Law Judge and the Administrative Review Board of the Department of Labor that the driver was terminated in violation of the whistleblower provisions of the Surface Transportation Assistance Act.  The majority discussed relevant statutory definitions of “operate,” but also discussed provisions of 49 U.S.C. § 31105(a)(1)(B)(ii), which make it unlawful 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.’”  (P. 1211.)
    The dissent expressed another point of view.  Gorsuch wrote:           “A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck.  He called his company for help and someone there 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, deciding instead to unhook the trailer and drive his truck to a gas station.  In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.
    “It might be fair to ask whether TransAm's decision was a wise or kind one.  But it's not our job to answer questions like that.  Our only task is to decide whether the decision was an illegal one.  The Department of Labor says that TransAm violated federal law, in particular 49 U.S.C. § 31105(a)(1)(B).  But that statute only forbids employers from firing employees who ‘refuse[] to operate a vehicle’ out of safety concerns.  And, of course, nothing like that happened here.  The trucker in this case wasn't fired for refusing to operate his vehicle.  Indeed, his employer gave him the very option the statute says it must:  once he voiced safety concerns, TransAm expressly -- and by everyone's admission -- permitted him to sit and remain where he was and wait for help.  The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not.  And there's simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.  Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law.  But it isn't there yet.  And it isn't our job to write one -- or to allow the Department to write one in Congress's place.”  (PP. 1215-1216.)

         I wonder if Judge Gorsuch interrupted his colleagues during oral argument. 

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