The Law as Justice Gorsuch Sees It
16 min read
During his Supreme Court confirmation hearing, in March 2017, Neil Gorsuch laid out his views on what makes for a “good” judge. “My personal views,” he said, “belong over here,” and he gestured to his right. “I leave those at home.”
But of course he does have personal views—ones that are quite deeply felt. In a new book, Over Ruled: The Human Toll of Too Much Law, co-written with the legal scholar Janie Nitze, now-Justice Gorsuch describes what he sees as a pervasive and destructive overreach of federal law, which, he says, ensnares far too many Americans in a capricious and complex web.
I spoke with Gorsuch by phone last week to ask him why he thinks America has “too much law,” and whether there’s any way to fix that problem without creating worse ones. The transcription of our conversation below has been edited for length and clarity.
Rebecca J. Rosen: What was your core purpose in writing this book?
Justice Neil Gorsuch: I’ve been a judge for a good spell now, and over time I kept seeing cases in which ordinary, decent, hardworking Americans who were just trying to do the right thing found themselves caught up in a legal maze, and in ways that they couldn’t reasonably have expected. And I wanted to learn more about why that was the case, where it came from, and to explore some of the stories behind the cases I see, whether it’s fishermen in Florida, monks in Louisiana, a magician in Missouri. I wanted to explore the human stories behind these cases.
What I found was that, simply put, law has exploded in just my lifetime. And of course, law is vital to keeping us free and to our aspirations for equal treatment of all persons. But it also contains an irony—too much law can threaten those very same ideals and aspirations. James Madison wrote about this 200 years ago, and the need to find a golden mean between those two extremes, and I just wanted to reflect on my experiences as a judge about where we stand in that aspiration, that goal.
Rosen: Parts of your argument will really appeal to liberal readers, and parts will be very intuitive to conservative readers. I can just imagine a person reading the book and saying, Okay, I definitely agree with him about, say, criminal law and immigration law, but I’m less convinced on environmental law or financial regulation—areas where I think what we need is more regulation. Can you say why you think the quantity of law is the right framework for assessing the law’s danger, as opposed to maybe the precision of law, or even qualitative measures of whether our laws produce the outcomes we want?
Gorsuch: Of course, both things are very important. And I’m glad you identified that there is a common thread here, and the concern with the scope and the reach and the number of our laws is something that has always been of concern to the American people on a bipartisan basis. The Trump administration had a rule that if you put in a new regulation, you have to get rid of two others. The Obama administration had a big deregulatory initiative too. President Barack Obama had said in one State of the Union that, for example, when it came to salmon, the Interior Department regulated them when they’re in fresh water, the Commerce Department when they’re in saltwater, and it got even more complicated when salmon were smoked—and that got big laughs, and the fact-checkers got busy thinking maybe he had exaggerated. But they rated it as mostly true because he’d actually understated the complexity of the regulation.
If I’m looking for an example of the bipartisan spirit in which I tried to write this book with Janie Nitze, I point you to my good friend Steve Breyer. Before he became a justice, he and Senator Ted Kennedy eliminated an entire department of the federal government—the Civil Aeronautics Board (CAB). Back before they adopted their legislation in the 1970s, no new airline could come into existence without the federal government’s approval; no existing airline could pursue a new route without the federal government’s approval; they couldn’t change their fares without the federal government’s approval.
Justice Breyer and Senator Kennedy held a hearing in which the only people who supported that regime, it turned out, were the agency and the airlines. Nobody thought they could make the change. George Stigler, the famous economist, said that it was an intractable problem, and that the industry and the agency were too powerful to make any change. Of course, if you know Breyer, you know that that’s a challenge for him, not a stop sign. And they did it, and now the American people have met much lower fares, and flocked to the skies in numbers that were unimaginable in my youth. (By the way, the bipartisan nature of these concerns is nothing new. Before Breyer and Kennedy’s reform of the Civil Aeronautics Board, James Landis and William O. Douglas—both fathers of the New Deal—came to be concerned about agency power too, something we write about in the book.)
So one thing I point to in terms of your question about crime versus, say, environmental regulation, I’d offer just a couple of anecdotes and facts for everybody to consider, all Americans, of whatever political stripe. Currently we have one in 47 Americans subjected to some form of correctional supervision. There are more people serving life sentences today in prison than there were serving any term of incarceration in the 1970s. I think that’s something everybody has to think about, on the one hand.
And then when it comes to environmental regulation, just for example, on the other hand, I tell the story of Butte, Montana, in the book. In the 1800s, Butte and the region around it was one of the richest places on the planet. They discovered copper there, and it was vital to our telegraphs and our telephone wires. In World War I, it was vital for bullets—so important that they sent General Omar Bradley to guard the mine. And by the time of the 1980s, the plant had closed and Butte had become an impoverished area, and they discovered that all that melting copper had resulted in arsenic being deposited in a 300-square-mile region of Montana—a huge area.
A cleanup effort was started, and the EPA did a very good job with industry, but they set the cleanup standards at 250 parts per million in private yards. And the people of Butte said, Well, hold on. In a lot of municipalities, you can’t even put into the waste dump materials that contain over 100 parts per million. The EPA said, Yeah, yeah, but we consider 250 parts per million an acceptable cancer risk. The people of Butte tried to sue the company; they wanted to clean up their own yards. And the industry—as you can understand—opposed that effort and said, Well, we’re just doing what the EPA says. And the EPA came in on the side of industry.
In Atlantic Richfield Co. v. Christian, our Court held—and quite understandably, it’s a reasonable interpretation of the law; I don’t take issue with it, though I did dissent in part—that the people of Butte, Montana, couldn’t clean up their own yards without the federal government’s permission. Of course, we all want clean air, clean water, clean lands. We want a safe environment for all of us, whether it involves technology or cars or anything else. But is there room for consideration about how we’re doing in achieving that golden mean? Where, yes, We have expertise brought to bear, and the federal government plays a role, but maybe the people and the states also have a role to play?
Rosen: The Butte story comes up in the book as an example of the too-powerful federal government diminishing the capacity of states and municipalities and citizens to experiment on their own. But, reading it, I wondered whether maybe this isn’t only an example of federal overreach, but also one of just poor regulation. So I could just as easily see making an argument that what we need here is not less regulation, but better regulation.
Gorsuch: I don’t disagree with anything you’ve said.
Rosen: You also mentioned a case where you said you dissented, but you could understand the argument and respected the decision. In your book, you write that sometimes as a judge, you feel that it’s not your role to do anything about this problem of too much law. I was curious if you could just talk more about what you mean by that, and if there have been times where you felt like you had to decide a case against how you would perhaps act if you were a legislator?
Gorsuch: Yeah, as a judge, I apply the laws and the regulations lawfully adopted under them as I find them. That’s my role. That’s my job. I think that’s what you want me to do. I don’t think you really want me to legislate ideas from the bench. Nine people in Washington can hardly rule the country as well or as wisely as the American people, in whom sovereignty is vested in our Constitution. There are three magic words that start our constitution: We the people. What a radical idea that was at the time, and still is—that the people can rule themselves and do so wisely. It’s their responsibility—it’s all of our responsibility—to ask these questions about the role of law in our lives, and whether we got it right at the moment. And all I can offer as a judge is my unique vantage in watching cases come before me over the course of almost 20 years.
Rosen: In your book, you list 34 examples of “seminal legislation” that you say do “vital work,” including the Clean Air Act and the Equal Employment Opportunity Act. Additionally, many of the anecdotes of egregious overreach that you cite came under laws that many Americans consider essential. You mention a fisherman arrested under the Sarbanes-Oxley Act, which many people believe is necessary for avoiding certain types of financial fraud, and an outdoorsman prosecuted for riding a snowmobile in a protected wilderness area in an effort to get to safety during severe weather conditions. Obviously, many people support wilderness protections, even if they would understand the outdoorsman’s decision in that moment. In an effort to reduce regulation, how do we protect the baby while throwing out the bathwater here? How do we protect the good aspects of our law?
Gorsuch: On that, we’re in radical agreement. All of those laws do vital work. The question that the book seeks to pose is: How do we balance that against some of the excesses? Let’s just explore one of these examples—the fisherman.
Let me just flesh out that story. John and Sandra Yates were high-school sweethearts. They moved to Florida, where John pursued his lifelong passion of fishing. He became a commercial fisherman. He worked his way up from deckhand to be captain of his own small boat with a small crew. And they’re out one day, for red grouper. They’d actually been out for quite some time, and they had thousands of pounds of red grouper in their hold. And an official comes up and says, I want to measure all of your red grouper.
The official spent the whole day measuring thousands of pounds’ worth of fish. He finds 72 that were undersize. The limit then was 20 inches. All of them were longer than 18 inches, but there were 72, he thought, that were undersize. John disputed that, because he said that the agent didn’t know how to measure the lower jaws of the red grouper appropriately, but put that aside. The agent tells John to segregate the 72 fish in a crate, and he’ll deal with them when he gets back to dock in a few days. That happens, and they come back to dock, and the agent measures the fish again. This time he finds only 69 red grouper that are undersize, and he’s suspicious. But nothing happens—for nearly three years.
Three years later, agents surround his house, and Sandra notices them, looking out the window while she’s doing the laundry. They come looking for John. He’s out crabbing; she calls him in. They arrest him. Sandra and John have no idea what this is about, three years later. They take him two hours away and book him in Fort Myers. And there they revealed that they’re charging him with violating the Sarbanes-Oxley Act, which was adopted after the Enron accounting scandal—an important law that does vital work in that field.
What’s their theory of the case? That law says that it’s a federal felony subject to up to 20 years in prison—federal prison—for anybody to intentionally destroy financial documents, accounting records, or other tangible objects that might impede a federal investigation. And apparently the government’s theory of the case is that John threw overboard 72 undersize fish and replaced them with 69 still-undersize fish, and that these were tangible objects in violation of Sarbanes-Oxley.
By the time the case goes to trial, guess what the size limit for red grouper is? It’s 18 inches. They still pursue their charges. John winds up spending a very short period in prison—but still, time in jail, over Christmas. He and his wife are at that time trying to raise two young grandchildren. He loses his job and his means of supporting his family. Sandra becomes the primary breadwinner. They live in a double-wide trailer now.
But Sandra won’t give up. She says, What was done to us here shouldn’t happen to other people. They pursued the matter all the way to the Supreme Court of the United States. They win 5–4. And they win all the vindication someone can win in our court system. But have they really won? Look at what happened to their lives, the destruction that was wrought upon them.
Rosen: There’s clearly a problem here. But where is the problem? Is it with Sarbanes-Oxley? Is it something about the Commerce Department? Is it in the psychology of this one agent who pursued this so far? It seems like there were so many points in this story where this could have been stopped. Why did this even make it to trial?
Gorsuch: If you’re asking those questions, we succeeded in the book.
We have so many crimes today in the federal system that people have lost count. Somebody in the Department of Justice tried to count them all in the 1980s and gave up—it took years. There are thousands upon thousands upon thousands of them. And that’s just the tip of the iceberg. If you go into the federal regulations, there are by some estimates north of 300,000 federal crimes.
Madison wrote about this. This is not a new problem. He, the father of our Constitution, and the other Founders, they wanted written law. They wanted people to know what their rights and their responsibilities were. But they also knew that when you have too much law, you actually wind up instilling fear in people and disrespect for our legal institutions, and you undermine the rule of law. And, worse than that, maybe just as bad as that, who can live in a world with so much law? Who can maneuver best? Madison said that the moneyed and connected are the ones who will succeed best in that environment, and it’s the ordinary person who will get caught up in the law more frequently.
And it’s certainly true that large institutions can lobby for rules, that their employees sometimes move in and out of government. They can even sometimes capture regulatory institutions.
Rosen: This term, the Supreme Court overturned Chevron deference. As a result, a lot of regulatory disputes will move from administrative-law judges to the courts. But you seem very sensitive to the concern, as you write in the book, and as you were just saying, that we have an access-to-justice problem in the courts. What if the courts also have their downsides? What if they empower people who know how to work the system, and turn out not to be a sympathetic venue for the little guy after all?
Gorsuch: There’s a lot packed into that question. Let’s start with Chevron, then I’ll try and address access to justice. So, what is Chevron? Chevron was basically a rule that when a law is ambiguous, the agency gets to interpret it rather than a court.
What I saw as a judge in my experience, and what many other federal judges reported, and the Court ultimately found, is that Chevron places a systemic weight on the scale of justice in favor of the government against individuals. Lady Justice outside our Court sits with a blindfold on, with the scales of justice evenly tilted. And when judges are asked to interpret laws, we’re supposed to do it without respect to persons. That’s what the judicial oath says. All people who come before us are supposed to get a fair shake and stand on equal footing in a court of law. And the government isn’t entitled to systemic bias in its favor.
What I saw as a lower-court judge, what persuaded me that Chevron needed to be revisited, was how it impacted ordinary people. I tell the story in the book of Alfonzo De Niz Robles, who’s an immigrant to this country, who is married to an American citizen, and who has four American children. He faced two statutes, one of which said that someone in his shoes could apply for relief immediately. Another one of which said that somebody in his shoes had to leave the country and stay out of the country for 10 years before applying for admission to the country.
My court at the time, the Tenth Circuit Court of Appeals, had issued a decision saying that, looking at those two statutes as fairly as we could, the first statute controlled. Relying on that judicial interpretation, Mr. De Niz Robles applied for immediate relief, as any sane person would. Six years later, after sitting on his application, the Board of Immigration Appeals comes back and says, No, the second statute, the one requiring an individual to leave the country for 10 years, controls. The Tenth Circuit got it wrong. And under Chevron, we’re entitled to deference to our views now. That meant Mr. De Niz Robles faced a 16-year-plus odyssey to have his application permission reviewed. I saw case after case after case like that, where the systematic bias in front of the government yielded those kinds of results for ordinary people.
Now, turning to the second half of your question, access to justice. That’s something I’ve written about, Janie’s written about in the past, and it’s terribly important. We need to rethink our legal system in which lawyers charge so much money for ordinary legal services that nobody can afford them. I as a lawyer couldn’t afford my own hourly rate. And that—that’s a problem. The book explores several potential solutions or ideas that might help.
You raise a question that is whether appearing in front of an administrative-law judge helps somebody, as opposed to appearing in front of a court. Well, when the government’s come after you, would you rather appear in front of a judge with life tenure, who owes no obligation to a political party or anybody else, and is charged with applying the law as fairly and neutrally as he or she can, and you’re entitled to a jury of your peers? Or would you rather go before an official of the very agency that is coming after you? Somebody who is employed by the same agency, where you don’t have a right to a trial by jury, and where the procedures look very, very different than they do in court? It’s no secret that the agencies prevailed before their own administrative-law judge much more often than they do in court. And I just asked, which of those would you rather face when the crosshairs are on you?
Rosen: You have written this whole book about law’s overreach. Nowhere in the book do you talk about abortion. For some people, that’s a textbook example of government overreach into a personal decision. So I’m just wondering how you think about abortion in the context of what you’re saying in the book.
Gorsuch: I’m just a judge. And I’m charged with applying the Constitution and the laws of the United States. And one important thing that judges have to keep in mind is their limited role in a country where we the people are sovereign. And what in the Constitution entitles me to make those decisions—very complex, difficult decisions? What entitles nine people in Washington to decide them instead of the American people? And the answer the Court ultimately reached is that there isn’t anything in the Constitution that speaks to this question.
And in those circumstances, it is for the American people to decide. I have more faith in the wisdom of the American people to decide those questions thoughtfully, and I know that that’s where the right to decide those questions belongs, under our Constitution. And I point out that most Western democracies can resolve these questions in just that way—through democratic processes. We shouldn’t be afraid of taking control of our own lawmaking processes as a people, rather than relying on nine people in Washington to decide those questions for us.
