Portside

Over Ruled: The Human Toll of Too Much Law
Neil Gorsuch and Janie Nitze
Harper
ISBN: 9780063238473

IN HIS NEW BOOK Over Ruled: The Human Toll of Too Much Law, co-authored with Janie Nitze, Supreme Court Justice Neil Gorsuch makes an important and valuable point: in recent decades, we have vastly increased the number of laws in the United States, producing such complexity that even lawyers are sometimes unable to tell what the law is. Unfortunately, his book is persistently distorted by minimal-state fantasies that are likely to hurt the people he most wants to help. And the two authors sometimes misrepresent the facts of the stories they tell. Both of these problems also infect Gorsuch’s judicial opinions. The principal virtue of the book is the light it unintentionally sheds on some of the Supreme Court’s least defensible decisions.

The central concern of Gorsuch and Nitze is the sheer volume of law. At the federal level, the number of regulations has become enormous. The Federal Register and the Code of Federal Regulations have grown into immense multivolume sets. Agencies also issue informal “guidance documents” that interpret those regulations, even more voluminous than the rules. “[B]oth regulators and the regulated often treat guidance as binding, and many of these guidance documents are not easily available to the public […] some have been found only in the desk drawers of agency employees,” Gorsuch and Nitze lament. Judicial decisions add to the complexity. The result, the authors write, is that “ordinary people are often caught by surprise, and even seasoned lawyers, lawmakers, and (yes) judges sometimes struggle to make sense of it all.” Even compliance is burdensome: “By the government’s count (probably an underestimate), Americans today spend 9.78 billion hours a year completing federal paperwork.”

Gorsuch and Nitze rarely mention the actual dangers that called forth this regulatory apparatus. They are particularly outraged by the restrictions imposed during the COVID-19 epidemic—in Arizona v. Mayorkas (2023), Gorsuch called them “the greatest intrusions on civil liberties in the peacetime history of this country,” evidently forgetting slavery and the Jim Crow laws—but doesn’t seem to notice that it killed a million Americans and, absent shutdowns and mask mandates, would have killed many more.

The authors are right that as regulations accumulate, the complexity becomes daunting. Steps should be taken to recodify and streamline the law, and make the administrative process more navigable. Some laws are simply corrupt goodies handed to special interests, such as licensing requirements for hair braiders and interior decorators. Others, as Gorsuch and Nitze point out, are stupid relics: “Is there anyone who thinks it’s a good thing to maintain on the books a law that forbids cursing in front of women? Or one that penalizes playing the National Anthem out of tune?”

None of these needed reforms, however, can be undertaken by judges, who can’t discern when laws are unnecessary and certainly can’t rewrite them. So Gorsuch hasn’t got the tools to do the job that his book calls for. That is good reason for him to write about it. Judges are citizens too, and they get to participate in public discourse about all issues, not just those that concern their jobs. And, as a judge, he frequently encounters the dysfunction he describes. If you see something, say something.

But as a judge, Gorsuch has gone beyond his mandate, engaging in a reckless judicial campaign against the modern administrative state that is oblivious to the problems that necessitated the state apparatus in the first place. He attacks that apparatus in clumsy and overbroad ways, ignoring government’s capacity to attack real problems. He is smart and capable, yet he misreads the plain language of statutes, misstates the facts of cases, and is reckless about the consequences of his decisions. These failures of judicial craftsmanship, on the part of such a distinguished jurist, are mysterious. Over Ruled helps to explain the mystery.

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It is impossible here to survey even that subset of Gorsuch’s jurisprudence that addresses the power of regulatory agencies, so I’ll focus on just one case to show the effect of his suspicion of those agencies’ power. Federal law commands the Occupational Safety and Health Administration (OSHA) to issue an “emergency temporary standard” if the agency determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” when the standard is “necessary to protect employees from such danger.” The Biden administration directed employers with 100 or more employees to require that their workers either be fully vaccinated against COVID-19 or tested weekly and masked at work. The court, with Gorsuch in the majority, held in National Federation of Independent Business v. OSHA (2022) that the emergency standard was not authorized by the statute.

The dissenters, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, noted that “the majority does not contest that COVID-19 is a ‘new hazard’ and ‘physically harmful agent’; that it poses a ‘grave danger’ to employees; or that a testing and masking or vaccination policy is ‘necessary’ to prevent those harms.” The majority responded that, because the court will “presum[e] that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies,’” it will not allow an agency to act on “major questions” unless there is “‘clear congressional authorization’ for the power it claims.” Why wasn’t the statute clear enough to satisfy the “major questions” doctrine? The court explained that the regulation was “a significant encroachment into the lives—and health—of a vast number of employees.”

Congress, the majority thought, could not have meant to authorize OSHA to impose such an “encroachment” as vaccination-or-testing. But the “encroachment” would not have seemed burdensome in 1970, the year the law was passed. Vaccination was a wonderful gift that anyone would be crazy to refuse. People remembered children crippled by polio. COVID is deadlier. Gorsuch’s concurring opinion found it extraordinary to “induce individuals to un­dertake a medical procedure that affects their lives outside the workplace.” Affects them how? By letting them safely go home to their families? By preventing them from infecting co-workers? A protection from workplace hazards that persists after work wouldn’t bother anyone who had not been listening to anti-vaxxer pundits.

Gorsuch likes to claim he is a strict textualist. But here he wrote that OSHA exceeded its authority because the danger of COVID was not “uniquely prevalent inside the workplace, like asbestos and rare chemicals.” But the statute’s protection is not confined to dangers “uniquely prevalent in the workplace,” a phrase that appears nowhere in the statute. The dissenters point out that “OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits.” By Gorsuch’s reasoning, OSHA could not require that construction workers be given hard hats, because traumatic brain injury is not uniquely prevalent inside the workplace.

He emphasized the “nondelegation doctrine,” which holds that Congress can’t give away its power to legislate. If the law authorized what OSHA had done, “that law would likely constitute an unconstitutional delegation of legislative authority.” Why would Congress consider such a broad delegation? In the book, Gorsuch and Nitze write: “In our eagerness for quick solutions, we sometimes look to agency officials rather than our elected representatives.” But there’s a more obvious and innocent explanation. Many problems in the world constantly take new shapes. They require considerable expertise even to detect and diagnose: pollution, financial market fraud, dangerous or ineffective pharmaceuticals, hazardous consumer products. Among these is workplace hazard. Congress knows that it can’t figure out, on an ongoing basis, which substances, biological or chemical, are toxic for workers to inhale. So it reasonably delegates to OSHA the task (quoting the statute) to “assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience.” There are mechanisms that aim to ensure that the burdens on citizens and businesses are justified. Since the Reagan administration, federal regulations have been subjected to cost-benefit analysis—a highly technical undertaking that is far beyond the capacity of courts. Gorsuch’s proposal is pretty radical. As Kagan wrote, in Gundy v. United States (2019), if broad delegations to agencies are unconstitutional, “then most of Government is unconstitutional.”

Gorsuch supplements his argument with another, remarkable objection: OSHA improperly imposed the rule “at a time when Congress and state legislatures were engaged in robust debates over vaccine mandates.” Those debates happened almost 50 years after the law was enacted. How could they have changed the meaning of the law? But Gorsuch isn’t kidding: in another case, which nullified a regulation of polluting power plants (West Virginia v. Environmental Protection Agency in 2022), the Supreme Court scolded that similar regulation “has been the subject of an earnest and profound debate across the country,” and Gorsuch, again concurring, saw “a relatively easy case” for invalidation because “whether these plants should be allowed to operate is a question on which people today may disagree.”

In short, Gorsuch thinks that a regulation becomes “major” enough to trigger the major questions doctrine if, among other factors, the policy is politically controversial today. An agency can lose the authority to do something Congress has told it to do if, decades later, it is denounced on Fox News. Right-wing chatter gets to amend the US Code. The legal effect of the chatter depends on the discretion of unelected judges—not just the Supreme Court but any district judge who can be persuaded that a regulation is “major.” The Washington Post reports that the court’s new restraints on agencies (of which, again, this is only a sample) have produced “dozens of lawsuits that could invalidate a vast array of federal climate, education, health and labor rules.”

Gorsuch articulates the question like this in Epic Systems Corp. v. Lewis (2018): “Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration?” His creative reading of the federal arbitration statute (he ignored a provision saying that arbitration provisions do not apply to “workers engaged in foreign or interstate commerce”) killed three class action suits brought by employees who claimed that they had been illegally underpaid. One reason employers are tempted to cheat their workers is that the amounts, individually, usually are not worth litigating. Individuals are unlikely to risk the displeasure of their employers to recover small underpayments, and from the employer’s point of view, the small wrongs can add up to a nice gain. The problem of such cumulative wrongs is the primary justification for class action suits, in which a group of plaintiffs with similar claims can aggregate them into a single lawsuit. A regime in which employees’ rights are nullified by boilerplate contract terms is here imagined as a new form of freedom, in which the parties commit to what Gorsuch charmingly calls “individualized arbitration procedures of their own design.” In practice, that means that employees are denied any effective remedy for wage theft.

Gorsuch, however, is fixated on anecdotes of bad government behavior: the bureaucrats need to be constrained somehow. But even the anecdotes don’t help him if he gets their facts wrong. He and Nitze begin the book with the purportedly outrageous injustice done to John Yates, a commercial fisherman who was convicted of a crime after federal agents went “rummaging through” his catch and “declared” that some of the fish were too small. The agents told Yates to preserve this part of the catch, but later found that the measurements did not match, and concluded—rashly, the authors suggest, because they think the agent’s measuring skills were questionable—that Yates had thrown the small fish overboard. Yates was charged with violating the Sarbanes–Oxley Act, which prohibits altering or falsifying “any record, document, or tangible object” with intent to impede a federal investigation. He appealed his conviction, and the Supreme Court ultimately concluded that the act applied only to tangible objects that are used to record information. Gorsuch and Nitze claim that the evidence was weak (although Yates was convicted by a jury) and wonder how it is possible that “not one of the dozens of officials who touches his case says, ‘Wait a minute …’”

If, however, you look at the Supreme Court opinion in Yates v. United States (2015), you learn: “Under questioning, one of the crew members admitted that, at Yates’s direction, he had thrown overboard the fish Officer Jones had measured at sea, and that he and Yates had replaced the tossed grouper with fish from the rest of the catch.” That violated not only Sarbanes–Oxley but also another statute that prohibits destroying property to prevent federal authorities from seizing it. (The Court of Appeals decision adds: “After the switch was completed, Yates instructed [the crew member] to tell any law enforcement officers who asked that the fish in the wooden crates were the same fish that Officer Jones had determined were undersized.”) Yates did not challenge that conviction. He would probably have received the same punishment—a 30-day prison sentence—even without the Sarbanes–Oxley charge.

Gorsuch and Nitze concealed one of the most important facts about their leading illustration. It is understandable, if not excusable, when an advocate does this. It is a rookie error sometimes committed by lawyers with underdeveloped ethics and prudence. But what have Gorsuch and Nitze to gain by lying to the reader—and lying in a way that is so easily caught? It appears that their tale so mesmerizes the authors that it distorts their perception of the world. They may not even notice that they are hiding facts. (The same thing happened in the 2022 case Kennedy v. Bremerton School District, in which Gorsuch falsely described a football coach’s pattern of bullying his players into praying with him as a “short, private, personal prayer.”)

Gorsuch and Nitze write that Yates’s “story isn’t an uncommon one today.” They never explain how they know this. Many of their other horror stories are old tales (some over a decade old) that got media prominence because they were so unusual. The Yates story isn’t even anecdotal evidence, because the authors misreport it. When a Politico reporter pressed Gorsuch on this in writing—Gorsuch did an extensive series of interviews with conservative media but refused to speak to that reporter—his co-author, Nitze, responded that Politico had omitted the same facts in a piece that it had published in 2014. The piece was an account by Yates himself, published before the oral argument in his case. The fact that Yates misled his readers doesn’t excuse Gorsuch and Nitze for doing it.

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Gorsuch’s campaign against regulation is best understood as reflecting a minimal-state philosophy that appears nowhere in the Constitution. I anatomize this view in my 2022 book Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed, which aims to be a sort of Narcan for people who are drawn to these dangerous ideas. (Give it to your young libertarian friends.) Those ideas are easily recognizable in Gorsuch’s complaints.

I thought that refuting those ideas was pretty important because—as I showed in an earlier book, The Tough Luck Constitution and the Assault on Health Care Reform (2013)—they animated the preposterous constitutional challenge to Obamacare. Today, Trump’s Caesarism looks mighty distant from anything libertarianism, but he deploys libertarian rhetoric when that is convenient. Trump and Gorsuch are united in their contempt for the apparatus that contains disease, ensures clean air and water, and tries to limit global climate catastrophe. As this is written, Trump is recklessly smashing federal agencies, in ways that are manifestly unconstitutional. But will the Supreme Court say so? Will Gorsuch?

Gorsuch told an interviewer, “I’m not with my libertarian friends and saying, ‘Everything has to go and anarchy should reign.’” Perhaps those friends have more influence on him than he suspects.