As the confirmation process for Judge Gorsuch nomination to the Supreme Court heats up, we are sure to hear about the “fake burping” case. I wrote about this in the Daily Dawg last year, just because it was a colorful court case involving school law. Little did I know that it would become relevant to a SCOTUS nomination.
The case arose when a campus cop arrested a 7th grader for “fake burping” in P.E. class. The parents sued the cop for wrongful arrest. The majority of the 10th Circuit sided with the cop, granting him qualified immunity. Judge Gorsuch wrote a dissenting opinion that starts off with this:
If a 7th grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant 13-year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer 94 pages explaining why they think that’s so. Respectfully, I remain unpersuaded.
The Judge concluded his dissent with a nod to Charles Dickens and some comments that illuminate his judicial mindset:
Often enough the law can be “a ass—a idiot,” Charles Dickens, Oliver Twist….and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do. I respectfully dissent.
Smart fellow, that Gorsuch. Good writer, too—with a sense of literature and humor.
The case is A.M. v. Holmes, decided by the 10th Circuit Court of Appeals on July 25, 2016.
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Tomorrow: a case your board presidents should know about…