Hey, I'm not worried. This November instead of Big Brother to watch over (sorry regulate) me I'm praying for Big Sister.
Neil Gorsuch and the Laffer Curve of Law
The justice talks about how ‘good people’ are ‘getting whacked’ by the regulatory state. He says proposals to alter the high court are nothing new.
By Kyle Peterson, WSJ
Aug. 2, 2024 2:48 pm ET
‘He wouldn’t have needed a license if it were an iguana,” Justice Neil Gorsuch says. That sounds like a punch line, but “he” in this story is Marty Hahne, a Missouri magician. “It,” the non-iguana, is Mr. Hahne’s live rabbit. As a magical prop, the bunny is a classic, and probably more easygoing than a big lizard would be about getting yanked out of a hat for shrieking children.
Justice Gorsuch, seated at a coffee table in his Supreme Court chambers, is narrating an anecdote from his book that goes on sale Tuesday, “Over Ruled: The Human Toll of Too Much Law,” co-written with his former clerk Janie Nitze. It’s 2005, and Mr. Hahne is doing a show at a library. “Somebody in the audience comes up to him,” as Justice Gorsuch tells it, “and says, ‘Do you have a license for that?’ He says ‘I need a license for the rabbit?’ ‘I’m from the USDA. You betcha you need a license.’ ”
The U.S. Department of Agriculture had oversight of zoos and other animal exhibitors. “The agency had promulgated regulations that extended even to backyard birthday parties,” Justice Gorsuch says. For the magician, it meant undergoing home inspections and drafting a disaster-response plan. These rules not only didn’t apply to iguanas, they didn’t cover rabbits raised for meat. “You’re telling me I can kill the rabbit right in front of you,” Mr. Hahne once recalled asking an inspector, “but I can’t take it across the street to the birthday party?”
It’s hilarious—and also it isn’t. Other stories in the book, which aren’t funny at all, involve Montanans in a mining town trying to clean up arsenic, a fisherman vindicated at the Supreme Court after he’d served his 30 days in jail, and a company that spent years fighting accusations of Medicare fraud under rules that weren’t in place when the conduct occurred. That last case went to the 10th U.S. Circuit Court of Appeals in 2016, with then-Judge Gorsuch on the three-judge panel.
“I’ll never forget, the three of us were looking at each other, like, I think they’re citing new regulations,” he says. “But the regulations in effect at the time, they’re different.” As it turns out, “the federal government had created so many new rules that it was confused.” Well, who isn’t confused? His book cites guesstimates that U.S. statutory law runs to 60,000 pages, with another 188,000 pages of regulations, which delineate 300,000 criminal sanctions, while imposing on the American people 9.8 billion man-hours of paperwork each year.
How did it come to this? “That is the question of the book, and I don’t have a complete answer for you,” Justice Gorsuch says. But it involves a shift “both up and across in our separation of powers.” By “up” he means a movement of responsibilities from states and localities to Washington. By “across” he means a flow of authority from Congress to the D.C. agency apparatus.
Take the latter problem first, since it might be more tractable, as well as easier to follow through history, leading to Woodrow Wilson. “Part of the intellectual patrimony of our current predicament really traces, I think, back to Wilson,” Justice Gorsuch says. “He thought that the tripartite system of government was antiquated.” Wilson signed a bill in 1914 that created the Federal Trade Commission, an independent agency whose members can’t be replaced at will—meaning controlled—by the president.
“The FTC was supposed to be experts,” Justice Gorsuch says. Instead, “it’s either aspiring or former politicians who often get those jobs.” President Calvin Coolidge named former Rep. William Humphrey to the FTC in 1925, and Herbert Hoover gave him another term in 1931. Two years later, Franklin D. Roosevelt sought to fire him. Justice Gorsuch channels FDR’s thinking: “He’s not one of my pols. If we’re going to have pols, I want mine.” The Supreme Court ruled against FDR’s view in Humphrey’s Executor v. U.S. (1935), upholding independent federal agencies.
Yet much of Justice Gorsuch’s lament has a later vintage: “Some people think this story is a New Deal story,” but “the number of federal crimes has probably doubled in my lifetime.” (He was born in 1967.) “Today the federal government funds about a third of all state activities,” he says. “That’s new again, in my lifetime.” The book quotes then-Gov. Ben Nelson of Nebraska, testifying before a U.S. Senate committee in 1995 about doing his first state budget: “I honestly wondered if I was actually elected governor or just branch manager of the state of Nebraska for the federal government.”
What has driven the change? “I’m no social scientist. I’m no psychologist. But I think it has something to do with trust,” Justice Gorsuch says. In the 1830s, Alexis de Tocqueville marveled at how Americans solved problems in their communities. “We trusted one another, and we worked with one another, and we debated and we talked with one another,” the justice says. If people no longer trust their neighbors, much less folks across the town or the state, where do they turn?
Whatever the cause, he worries that the U.S., with its accumulated statutory commands and regulatory crimes, is on the far side of what one might call the legal Laffer curve. “Too little law poses problems,” he says. “I love my libertarian friends, but I am not with them on anarchy, OK? Law is essential.” And yet: “Too much law actually winds up making people fear law rather than respect law, fear their institutions rather than love their institutions.”
He got to thinking about this while noticing that “good people trying to do the right thing, and not trying to hurt anybody, are just all of a sudden getting whacked.” His co-author, Ms. Nitze, interviewed some of the litigants in these cases. At one point Justice Gorsuch mentions that America’s bureaucratic demands haven’t always been clear even to him. His wife, whom he met while a student at Oxford, is a naturalized citizen from England: “There’s a lot of paperwork to get your wife in this country, and I can’t fill it all out properly, I learned that.”
James Madison, whose portrait hangs in his chambers, warned of the corrosiveness of too much law. Justice Gorsuch argues, with good-natured pique, that the man from Montpelier has gotten “short shrift” amid the “Hamilton” theatrical phenomenon. “Truth is,” Justice Gorsuch says, “whenever the Founders needed something important done, they turned to Madison—any important writing.” The plan that “became the backbone of our Constitution.” The Bill of Rights. An address by President Washington, plus Congress’s response, and then Washington’s answer.
“He wrote, responded and replied to himself,” the justice says. “He was the last president to lead troops in battle, in the War of 1812.” He married “an absolutely independent, strong woman, who saved Washington’s portrait from the fires.” Maybe Justice Gorsuch’s next book should be a musical? He laughs: “The ‘Madison’ musical! The only music I can write is for my ukulele, and you don’t want to hear it.”
On some of the work to restore a more Madisonian government, Justice Gorsuch has a one-ninth say. When the court in 2020 refused to extend Humphrey’s Executor to the new Consumer Financial Protection Bureau, he was in the 5-4 majority, and he joined a concurrence by Justice Clarence Thomas that urged repudiating the 1935 precedent altogether. This summer he voted with a 6-3 majority (Loper Bright Enterprises v. Raimondo) to end so-called Chevron deference, the judicial doctrine of letting agencies decide the meanings of “ambiguous” statutes.
He argues that ending Chevron shouldn’t be seen as political, since deference benefits whoever is in power, with each administration reinterpreting laws in its favor. “It’s not a left-right issue. What it is, is a rule of law issue,” he says. “Lady Justice holds the scales”—he lifts high his right arm, striking the familiar statuesque pose—“and they’re supposed to be evenly balanced, not tipped systematically in favor of one party or the other.”
Similarly, he thinks reinvigorating federalism shouldn’t be a partisan cause. Still, it seems to be pushing against broad trends to wonder aloud, as Justice Gorsuch does, about resetting the federal-state relationship. “I think it’s incumbent on all of us just to ask that question and to start thinking about it again. That’s the best I can do,” he says. “I’m a judge, right? And I’m one old man in Washington. I can’t fix it all.”
Justice Gorsuch declines to take a position on the push, including by President Biden, to impose term limits and an “enforceable” ethics code on the high court. “I don’t think it’d be useful for me to get involved in what is now a political discussion,” he says. “I will say this, though: There’s nothing new about these sorts of initiatives.”
FDR’s plan to pack the court is familiar, but he ticks through others: “Thomas Jefferson didn’t much like John Marshall and his rulings. They even tried to impeach one of the Federalist judges on the court at the time, Samuel Chase. Andrew Jackson just ignored the court when it came to the Trail of Tears and the Cherokee.” After FDR came “Impeach Earl Warren” road signs and bumper stickers. “That’s been part of American life for a long time,” he says, in a tone that’s almost a verbal shrug.
“We should also remember at the same time,” he adds, “that Madison and his Constitution gave us independent judges for a reason. Our Founders lived under judges in the colonial period that were appointed by the crown and did the crown’s bidding. And they did not want that for us.” The independent judiciary is “one of the foundational pillars of our freedoms,” he says. “I’m not telling you it can’t be improved,” but the U.S. legal system is the world’s envy.
Did the Covid pandemic and the 2022 leak of the Dobbs abortion ruling change how the high court operates? Not much, apparently. “Unsurprisingly, the court has taken more security precautions with respect to its internal drafts,” Justice Gorsuch says. He declines to detail what he told his clerks about the leak. “I can tell you,” he says, in a low steely voice, “that it was very important to me that anybody who works for me was totally cooperative with the investigation. And they were.”
Oral arguments, influenced by pandemic teleconferences, have become “a little more leisurely.” Lawyers now get two minutes to speak and settle in before the interrogating begins, which Justice Gorsuch says he loves: “They’re all overcaffeinated and underslept, and they have a point they want to make.” At the end, each justice is given a turn for final queries. “You don’t have to elbow your way in,” he says. “You never leave oral argument thinking, gosh, there’s a question I wanted to ask.”
Then comes the work of drafting rulings, where Justice Gorsuch says his colleagues shine. “I think we have an unusually large number of very gifted writers on the court right now,” he says. “I’m not patting myself on the back. I put myself kind of in the middle of the pack, frankly.” Asked if he has a favorite of his opinions, he answers without pausing to think: “Nope. I hate ’em all. Do you like reading your old writing?” Sometimes the job requires it. “Inevitably I think, ah, I wish I’d said this differently, ah, I didn’t explore that enough.”
What is his drafting process? “I like to have a law clerk do something,” Justice Gorsuch says, even if he ultimately follows the practice of his old boss, Justice Byron White: “He’d say, write me something. And he’d read it. And then he’d throw it away. And then he’d write his own thing.” This isn’t to say the clerks are wasting time: “It’s informative to see how another mind might approach the problem.”
But then Justice Gorsuch sits down to write a complete draft himself. “It’s a pretty intense, lock-yourself-in-a-room-with-the-materials process,” he says. “At the end of the end of the end of the day,” he says, repeating himself for emphasis, “I’m the one who took the oath, right? And I have to satisfy myself, that I’ve gone down every rabbit hole, and I understand the case thoroughly, and I’m doing my very best job to get it right.”
Mr. Peterson is a member of the Journal’s editorial board.
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