OpinionDavid French
Credit...Matt Eich for The New York Times
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By David French
Opinion Columnist
On July 31, I met with Justice Neil Gorsuch in his chambers at the Supreme Court for a wide-ranging interview about his new book, “Over Ruled: The Human Toll of Too Much Law.” His co-author, Janie Nitze, a former clerk of his, was present for the interview as well.
I didn’t get to ask every question I wanted to, but our conversation covered a lot of ground, including Gorsuch’s indictment of the regulatory state, his approach to evaluating agency expertise, the problem of mass incarceration and coercive plea bargaining, his jurisprudence holding the United States accountable for its obligations to Native Americans and his definition of originalism and the role of history in understanding the Constitution.
What follows has been lightly edited for length and clarity.
David French: So I want to start by talking about the book. It takes direct aim at the proliferation of rules, regulations and statutes that govern our lives. But I’m really intrigued by the emphasis on the human toll. Critics of the regulatory state often emphasize the economic toll of dense regulations and rules. They’ll tell you if we can smooth out the Federal Register, we could save X billions of dollars, for example. But its defenders will say, “Well, wait a minute. These regulations might create economic inefficiencies, but they actually protect people.” Your book says that’s not necessarily the case. What is the human toll?
Neil Gorsuch: Well, that’s sort of a question about why I wrote the book, David, I think. And the answer is, I’ve been a judge for about 18 years now. And I just have seen so many cases in which ordinary, hard-working, decent Americans, trying to do their best and intending no harm to anyone, just get caught up in a wall of rules or laws that they didn’t know existed.
And having sat through those cases, I wanted to know more about how that came to be, why, and more about them.
So really, the book’s a book of stories about them, of a fisherman in Florida, about monks in Louisiana, about hair braiders in Texas. And they’re cases I’ve seen or some of my colleagues have told me about, and it is not an attack at all on law or regulation. For goodness’ sake, I’m a lawyer and a judge. And some law is absolutely necessary, in order to protect our liberties and our safety.
Washington called that “ordered liberty.” But the founders also knew that too much law poses some dangers as well. James Madison talked about that in The Federalist, and he said a couple of things happen. One, you start losing your liberties. And two, it impacts different populations differently. So the moneyed and the connected can find their way through a maze of litigation and through a maze of regulation. But what about ordinary Americans?
French: Well, one way I’ve heard that described is that complexity is a subsidy for the wealthy. That complexity is a subsidy for the powerful. In other words, large corporations, well-connected individuals, wealthy individuals can navigate all of the red tape. But the ordinary American really struggles, and sometimes the ordinary American can even struggle to interpret criminal law.
This was an interesting element of the book to me and something that people who are not familiar with your jurisprudence might not know — it’s that you’ve long been a champion of the rights of criminal defendants. It struck me that some of the stories here in the book, of the way in which the complexity of criminal law has impacted people, are among the most potent in making the point. Is there a particular story about the abuse of criminal law that stands out to you as you’re reflecting back on the work?
Gorsuch: I would say Aaron Swartz’s story in the book might be one example. Here’s a young man, a young internet entrepreneur, who has a passion for public access to materials that he thinks should be in the public domain. And he downloads a bunch of old articles from JSTOR.
His lawyer says it included articles from the 1942 edition of the Journal of Botany. Now, he probably shouldn’t have done that, OK?
But JSTOR and he negotiated a solution, and they were happy. And state officials first brought criminal charges but then dropped them. Federal prosecutors nonetheless charged him with several felonies. And when he refused to plea bargain — they offered him four to six months in prison, and he didn’t think that was right — he wanted to go to trial.
What did they do?
They added a whole bunch of additional charges, which exposed him to decades in federal prison. And faced with that, he lost his money, all of his money, paying for lawyers’ fees, as everybody does when they encounter our legal system. And ultimately, he killed himself shortly before trial. And that’s part of what our system has become, that when we now have, I believe, if I remember correctly from the book, more people now serving life sentences in our prison system than we had serving any prison sentence in 1970. And today — one more little item I point out — one out of 47 Americans is subject to some form of correctional supervision (as of 2020).
French: You speak in the book about coercive plea bargaining, this process where a prosecutor will charge somebody and then agree to a much reduced sentence on the condition that they don’t take it to trial, that they go ahead and plead guilty, or sometimes when they refuse to plead guilty, they’ll add additional charges. This is something that a lot of critics of the criminal justice system have highlighted for some time. Do you see a remedy?
Gorsuch: Well, I’m a judge, and I’m going to apply the laws we the people pass. That’s my job. In the book, I just wanted to highlight to “we the people” some of the changes that I’ve seen in our law during my lifetime, and plea bargaining during my lifetime has skyrocketed. It basically didn’t exist 50 or 100 years ago, and now 97 percent or so of federal criminal charges are resolved through plea bargaining.
And I just have some questions. What do we lose in that process? We lose juries. Juries are wise, right? And they’re a check both on the executive branch and prosecutors and they’re a check on judges, too, right? And the framers really believed in juries. I mean, there it is in Article 3. There it is in the Sixth Amendment. There it is in the Seventh Amendment. They really believed in juries, and we’ve lost that.
And another thing about juries, when you lose juries: Studies show that people who sit on juries — nobody likes being called for jury service. But studies show that after jury service, people have a greater respect for the legal system, for the government, and they participate more in their local governments.
French: So the book also has a structural critique that I think is interesting. You discuss Congress’s role in creating the national labyrinth of laws. A lot of this labyrinth is the explosive growth of the criminal code, which are laws passed by Congress. But you also note the ways in which Congress has essentially punted its lawmaking responsibilities to executive agencies.
It has handed an immense amount of its lawmaking authority to the executive branch. And for a time before the Loper Bright decision, which overruled Chevron, it seemed as if the court had delegated some of its interpretive authority to the executive, to the point where the executive was making law by passing regulations, interpreting the laws passed by Congress and then enforcing the law, taking all three branches of government essentially upon itself.
The book seems to really square with some of the court’s more recent jurisprudence, which, as I interpret it, seems to be saying two things at once: Congress, do your job. And also, courts, do your job. In other words, defer less to the executive agencies. In the book, are we seeing the cost? Are you describing the cost of that sort of unified executive authority of lawmaking, execution and interpretation all in one large body?
Gorsuch: Well, I think I’d start with saying, during my lifetime, we’ve seen a lot of power move from the state level to the federal. Gov. Ben Nelson of Nebraska once quipped he wasn’t sure whether he was governor of a sovereign state or a branch manager for the federal government.
And 30 percent of state budgets now come from the federal government. That’s new. Again, in our lifetimes, David. OK. Now we’re talking about this move to the federal level. What do we see there? People think the Congress doesn’t do enough. Do you know how many words it adds to the federal code every year?
French: I do not.
Gorsuch: It’s about two million, according to some estimates. Two million words. One hundred years ago — well, the founding, certainly 100 years ago, too, the entire federal code could fit into one book. Today it occupies a wall in my chambers. So that’s Congress. So they’ve been busier than you think. And busier than they get credit for. All right?
And then you’re asking, “Now, well, what about, have we seen a move as well from Congress?” And so everything’s moved up, has moved over to the executive branch. And I think some, some things are worth noting there. We have maybe 5,000 federal criminal laws on the books. Nobody can be sure, because it takes so long to read them that they give up. I mean, nobody knows. That’s just in the criminal code.
How many federal regulations have criminal penalties attached to them? Estimates run as high as 300,000 federal crimes in the regulatory code. One hundred years ago, the Federal Register was 16 pages long. Today the federal government adds 60,000 to 70,000 pages to the Federal Register every year. How complicated is it? Part of the genesis for the book came in a case that I had, when I was sitting on the 10th Circuit, involved a small home health care company in Kansas. They were accused of Medicare........