Justice Gorsuch is a man on a mission. Since he became a judge almost two decades ago, one of his central, abiding passions has been fighting the astronomical growth of the federal administrative state (alongside more than a few dangerously expansive state-level bureaucratic machines). Now, again he has put pen to paper. Alongside his precautionary A Republic, If You Can Keep It (2019), Justice Gorsuch is quickly proving himself Justice Antonin Scalia’s literary heir as much as he was his judicial. Like A Republic, Gorsuch’s latest—Over Ruled: The Human Toll of Too Much Law—is similarly appropriately alarmist.
Indeed, in one sense Over Ruled is already a few decades too late. Gorsuch observes that nobody even actually knows how many federal crimes there are (estimates put it north of 300,000). And since the mid-1980s, Congress and unelected bureaucrats have added an average of roughly three million words to the federal legal pantheon every year. And the “human toll” has been as varied as it is drastic. There is no comprehensive database of every individual whose lives overregulation has wounded or destroyed, but Gorsuch highlights some of the most egregious episodes. There was the elderly orchid importer who spent seventeen months in federal prison for a permitting oversight—this after U.S. Fish and Wildlife Service agents in military-grade gear raided his and his wife’s once-bucolic ranch. In Louisiana, meanwhile, a group of monks started using excess lumber to build simple caskets, only to see the state’s funeral-parlor industry (“Big Death”?) bear down its entire—and apparently quite formidable—weight.
Not that there aren’t salient data points. Among these “numbers” (read: actual people, simply living their lives) are the one of every seven prisoners (federal and state) who is serving a life sentence—exceeding all federal inmates in 1970. American incarceration rates in general rival those of authoritarian states like Rwanda or Turkmenistan. Gorsuch notes that overregulation is only one source of these and other troubling statistics. Concurrent to the rapid rise in the sheer number and complexity of federal civil and criminal laws, American courts witnessed a severe degrading of their independent authority, a mixture of mandatory-minimum sentencing rules, the ongoing decline of common-law principles like the “rule of lenity” when the law broken does not fairly define the conduct prohibited, and, finally—and perhaps most consequentially—an increasingly desolate American civil life that has, to some, necessitated countless new rules and regulations to fill the ever-growing gaps in norms-based social control.
Granted, our nation’s social ailments have been brewing for some time, and they are far too intricate for Gorsuch to cover in addition to the legal consequences—and Gorsuch acknowledges that this is not a work of social science. For a primer on the phenomenon, and how far American society has fallen, Gorsuch makes excellent parallel use of Robert Putnam’s Bowling Alone: The Collapse and Revival of American Community (rev. 2020) and Alexis de Tocqueville’s Democracy in America (1835). Though it should be noted that Putnam in his latest version observes that some of the stormclouds have begun to clear. Still, the overarching lesson remains: Americans are drastically less socially cohesive as they used to be, with government—and individual political association—filling the growing liminal space.
Even on his own beloved court, Gorsuch does not pull punches. The good justice identifies a number of jurisprudential and institutional maladies that in the second half of the twentieth century turned what was a tribunal of last resort into a vanguard for legal and policy reform (matters properly left to lawmakers and executives). Of course, this is not a new phenomenon. In the earliest years of that century, Gorsuch reminds us, the Supreme Court was more than willing to sign off on eugenic and sterilization laws which epitomize governmental overreach. But even unlike the original Progressive Era, during which Roosevelt and his acolytes launched decades of federal aggression (culminating in the second Roosevelt’s New Deal in the 1930s), the exponential expansion of federal law in the last few decades is ripe for a level of abuse unseen or heard in American political history. Even if the character of such abuse has become less extreme. (Though even this is a matter of debate: Would you rather be officially sterilized or sentence to life in prison based on sentencing standards devised during the high-crime 1970s? Your choice!)
Gorsuch offers some solutions to these last few decades of overregulation—but not as many as us Gorsuch fanboys would have hoped. In this sense, Over Ruled is more a memoir of what has gone horribly wrong, instead of a national self-help on how to fix it. Still, it is a well-researched and eloquent work, with Gorsuch’s uniquely American brand of good-humored hokiness populated throughout. It is a must-read this summer for any and all who have watched the federal government’s growth in the last few decades with increasing alarm. We cannot, after all, fix problems unless we understand them first.
Alki,
Sam Spiegelman