When Supreme Court Justices publish books, they almost always get a lot of attention, no matter what they have to say. Recent examples include several books written by Justice Stephen Breyer while he was on the bench and Justice Sonia Sotomayor’s autobiography, which came out in 2013 and quickly became a best seller.
The website Goodreads lists 75 books written by past or current members of the Supreme Court. On Monday, Justice Neil Gorsuch joined the list with the publication of his co-authored book, Over Ruled: The Human Toll of Too Much Law.
In the run-up to its publication, Gorsuch gave a series of interviews and wrote an article for The Atlantic in which he previewed the book’s argument. Gorsuch wants to convince his readers that they are the victims of too much law and are one moment away from being caught up in a Kafkaesque world populated by gray bureaucrats and over-zealous government agents.
And, in all of this, he presents himself as a tribune for the people, for those he calls “ordinary, hard-working, decent Americans.” Buyer, beware of this faux populist.
Gorsuch’s lament is just the latest iteration of a familiar argument now recycled with a “friend of the little guy” bent.
For example, almost fifty years ago, Baylis Manning, a former Dean at Stanford Law School, published a series of articles on the theme of what he called “hyperlexis.” As Manning put it, “By any index or measure that you might choose to apply, our law is exploding.”
We are, Manning observed, “inundated by waves of new regulations, by judicial decisions, by legislation. Whole new areas of the law have sprung out of the ground overnight—environmental regulation is an example—and familiar areas like good old-fashioned property law have undergone a process of infinite fission.”
It is unsurprising that Gorsuch, like Manning, also targets environmental protection.
In his time, Manning warned that “increasing regulation is producing massive coagulation, embolisms in our legal process as a whole, clogging it and significantly impeding the availability and the distribution of justice.” He claimed that “Overregulation (I recognize the circularity of the term) is also stymieing, slowing down the implementation not only of private sector development….”
“The truth is,” Manning concluded, “we are simply drowning in law.”
That argument has often been picked up by conservatives who prefer less law and more of what they call “freedom.”
Be wary. Less law generally means more social inequality and more ability of market forces to pursue the private good at the public’s expense.
Gorsuch’s book adds a Machiavellian twist to this argument, focusing his criticism of too much law on heart-wrenching stories of “ordinary” people trapped in one or another version of a legal nightmare.
The online description of the book captures this emphasis quite well:
Over just the last few decades, laws in this nation have exploded in number; they are increasingly complex; and the punishments they carry are increasingly severe. Some of these laws come from our elected representatives, but many now come from agency officials largely insulated from democratic accountability.
In Over Ruled, Neil Gorsuch and Janie Nitze explore these developments and the human toll so much law can carry for ordinary Americans. At its heart, this is a book of stories—about fishermen in Florida, families in Montana, monks in Louisiana, a young Internet entrepreneur in Massachusetts, and many others who have found themselves trapped unexpectedly in a legal maze.
…[T]oo much law can place…freedoms at risk…. And often those who feel the cost most acutely are those without wealth, power, and status.
Fishermen, families, monks, young entrepreneurs…. It all sounds good.
But sympathy for those without wealth, power, and status has not been a shining star in Gorsuch’s jurisprudence. There have however been a few exceptions when Gorsuch has stepped out of character.
They make him look good compared to his arch-conservative colleagues. As Professor Justin Burnworth writes, “Neil Gorsuch is nearly twice as likely as the nearest conservative Justice to make a liberal vote when the majority of the Court makes a conservative decision.”
Let’s be clear, twice as likely means that Gorsuch cast “liberal” votes in 11% of the cases where the Court made a “conservative” decision.
As Burnworth explains, “Justice Gorsuch will side with marginalized people in cases that fit into his theories of law…. Gorsuch fights for ‘[a] little guy with a technical legal argument on his side.’”
This “side with the marginalized” when it fits a “technical legal argument” was seen most powerfully in Justice Gorsuch’s 2020 opinion in Bostock v. Clayton County, Georgia. In that opinion, speaking for Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, he ruled that “when an employer fires an individual for being homosexual or transgender it is a violation under Title VII of the Civil Rights Act of 1964.”
As Burnworth observes, in that case, “Justice Gorsuch ushered in a textualist reading that no one was prepared for.” He insisted that sticking to the text’s original meaning is required for people to understand their “rights and obligations” under any law passed by Congress.
While cases like Bostock are important markers of Gorsuch’s jurisprudence, they are notable exceptions. Throughout his career, Justice Gorsuch has tended “to rule for powerful interests and against workers, the disabled and environmental groups….”
He has done so by preventing administrative agencies from interfering with those interests or protecting those groups. What has been most characteristic of Gorsuch’s time on the bench has been the Justice’s hostility to the administrative state.
As Rachel Rothschild put it in February of this year, Gorsuch has long favored a “restrictive vision of federal regulation. Justice Gorsuch has been clamoring for such a revolution throughout its time on the bench.” Rothschild explains that “since joining the Supreme Court, he has…advanced a radical vision of the separation of powers that would drastically alter our modern system of administrative governance.”
Justice Gorsuch, Rothschild notes, “has opposed federal regulations on quite expansive grounds, criticizing deference to agency expertise and questioning the constitutionality of delegation to administrative agencies.”
And that was before the Supreme Court upended Chevron deference in June.
In his concurring opinion in that case, Gorsuch again tried to present himself as the “friend of the little guy.” He wrote, “Sophisticated entities and their lawyers may be able to keep pace with rule changes affecting their rights and responsibilities. They may be able to lobby for new ‘reasonable’ agency interpretations and even capture the agencies that issue them…. But ordinary people can do none of those things. They are the ones who suffer the worst kind of regulatory whiplash Chevron invites.”
Are ordinary people really going to do better in the world that Gorsuch and his conservative colleagues are busy constructing? I would not count on it.
In the end, Justice Gorsuch’s book may rightly remind its readers that law and legal regulation are by no means unalloyed goods. But, despite the compelling stories that he tells, we should also remember that Gorsuch may be many things, but “friend of the little guy” he is not.
