The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Gorsuch's "Trepidation"
On Thursday morning, the Supreme Court decided Babcock v. Kijakazi. No, this was not the case people were waiting for. But Babcock was important. By my count, Babcock was the first regular case the Court has handed down this term. The Court decided two cases on the rocket docket, WWH v. Jackson and U.S. v. Texas. And the Court decided one case from its original jurisdiction, Mississippi v. Tennessee. I think the pace of decisions this term has been chilled by the urgent matters rushing to the fore.
I tried to read Babcock, but gave up after the first page or so. Poor Justice Barrett was assigned this tedious Social Security case that yielded an 8-1 affirm. Woe is the junior justice. But I did turn to Justice Gorsuch's solo dissent. It begins:
As the only dissenter on this narrow question of statutory interpretation, I confess trepidation. Still, I cannot help but find compelling the arguments advanced by the petitioner before us and by the Eighth Circuit in Petersen v. Astrue, 633 F. 3d 633, 637–638 (2011).
The word "trepidation" jumped out. I can't remember the last time a Justice expressed such self-doubt in his opinion. And usually, Justice Gorsuch strikes me as one of the most over-confident Justices. See Bostock and McGirt. But here, Gorsuch approaches the case with humility.
Out of curiosity, I searched the Supreme Court database for the word trepidation. It had been used only one other time in the past three decades--in Justice Gorsuch's Doe v. Mills dissent:
From all this, it seems Maine will respect even mere trepidation over vaccination as sufficient, but only so long as it is phrased in medical and not religious terms. That kind of double standard is enough to trigger at least a more searching (strict scrutiny) review.
I like this approach. A solo-dissenter is telling all eight of his colleagues they are wrong. And that task must be even tougher with a mundane Social Security case. A feeling of "trepidation" softens the blow--even more than the obligatory "respectful" dissent.
Update: A colleague pointed out Justice Scalia's dissent in Saratoga Fishing Co. v. J. M. Martinac & Co. (1997), joined by Justice Thomas. This approach was written not with "trepidation," but "diffidently."
As I have confessed above, I have little confidence in my ability to make the correct policy choice in an area where courts more experienced than we have not yet come to rest. I would have been inclined to let the lower federal courts struggle with this issue somewhat longer, in the hope that there would develop a common law consensus to which we could refer for our admiralty rule, as we did in East River. Put to a choice, however, I would not select the rule adopted by the Court today. I would adopt the rule proposed by respondents and define the "product" for purposes of East River's economic loss rule as the object of the purchaser's bargain. That was essentially the approach followed by the Court of Appeals below, and I would accordingly affirm its judgment.
I respectfully, and indeed diffidently, dissent.
