Days before the Senate Judiciary Committee convened in early 2017 to consider Neil Gorsuch’s nomination for the Supreme Court, the New York Times reported that Democrats had “zeroed in” on their main “line of attack.” They would paint Gorsuch, then a federal judge, as favoring “the powerful and well connected.” The headline put it bluntly: Judge Gorsuch was “No Friend of the Little Guy.”

His critics ran with it. At the confirmation hearing, Senator Mazie Hirono said, “a pattern jumps out at me. You rarely seem to find in favor of the little guy.” Senator Pat Leahy slandered the late Justice Antonin Scalia as embracing an “interpretation of the protections afforded by the Constitution [that] left our most vulnerable communities out” and mused whether Gorsuch would do the same. Later in the hearings, a witness asserted that “time and again,” Gorsuch “gives the benefit of the doubt to employers, to politicians, to other powerful entities rather than the vulnerable individuals who rely on the law for protection.”

The attacks were cartoonishly wrong. As a judge on the U.S. Court of Appeals for the 10th Circuit, Gorsuch had written remarkable opinions highlighting the basic questions of human dignity and vulnerability that are too often glossed over in complex administrative cases. In one much-discussed case, Gorsuch had lamented the plight of Alfonzo De Niz Robles and other immigrants who are often whipsawed among ever-changing agency policies. In another immigration case involving the vicissitudes of judicial deference to an agency’s latest edicts, he complained that people cannot keep up with administrative state’s constant blizzard of new rules and flip-flops. “Who can even attempt all that, at least without an army of perfumed lawyers and lobbyists?”

At his confirmation hearing, Gorsuch warned that judges must not let their sympathies skew their judgments. “A judge is there to make sure that every person, poor or rich, mighty or meek, gets equal protection of the law.” And, “When I sit on the bench and someone comes to argue before me, I treat each one of them equally. They do not come as rich or poor, big guy or little guy. They come as a person.”

Still, Justice Gorsuch’s particular attention to human dignity has been evident in his judicial opinions, which often highlight the plight of “the little guy” lest that aspect of the case be lost in the law’s often sanitized vocabulary.

When the Court upheld the government’s rejection of an injured construction worker’s Social Security claim, for example, Gorsuch’s dissent began plaintively: “Walk for a moment in Michael Biestek’s shoes. As part of your application for disability benefits, you’ve proven that you suffer from serious health problems and can’t return to your old construction job,” yet the government rejects your claim and refuses to let you see its underlying evidence. “Even without the data, the examiner states in her decision on your disability claim, the expert’s say-so warrants ‘great weight’ and is more than enough evidence to deny your application. Case closed.”

In another case, when the Court ruled in favor the Creek Nation tribe’s broad assertions of sovereignty against Oklahoma, Justice Gorsuch’s majority opinion began: “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”

Similar themes arise in countless other Gorsuch opinions, especially in Covid-era cases involving executive orders against religious gatherings. When it comes to the modern administrative state, Justice Gorsuch is particularly keen to focus on the personal stories—and human dignity—at stake.

And now he has devoted an entire book to it. In Over Ruled: The Human Toll of Too Much Law, Justice Gorsuch and Janie Nitze, his former clerk, sound alarms over the sheer volume of law pouring out of Washington, especially from federal agencies, and the effects this has on American’s lives and the nation’s character.

_____________

‘The truth is, something’s happening in our country. Law is multiplying, and its demands are growing increasingly complex,” Gorsuch and Nitze write. “So much so that ordinary people are often caught by surprise, and even seasoned lawyers, lawmakers, and (yes) judges sometimes struggle to make sense of it all.”

In chapters focused on criminal law, for example, they note that it is virtually impossible to definitively compile a “federal criminal code,” because laws carrying criminal penalties are peppered through Congress’s statutes and, even more so, in agencies’ regulations. They change constantly—“what was lawful today can become unlawful tomorrow”—and they are increasingly inexplicable. “If a criminal law does not reflect common institutions,” they ask, “how can an ordinary person be expected to know about it—or even know to look for it?”

Gorsuch and Nitze root these themes deeply in the American founding—especially the writings of James Madison, whose warning in Federalist No. 62 is particularly apt:

It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.

And Madison, too, saw the danger as profoundly anti-republican, in “the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass
of the people.”

Gorsuch and Nitze illustrate each of their points with stories of ordinary Americans who challenged government overreach. Most poignantly, they tell the story of John Yates, whose life was nearly destroyed by a regulatory dispute over the size of red groupers he fished in the Gulf of Mexico, and his wife Sandra, who fought relentlessly against prosecutors who imprisoned him under, astonishingly, the Sarbanes-Oxley Act’s protection of financial “records,” “documents,” and “other tangible objects.” (In telling that story and others, they rely on not just public records but also Ms. Nitze’s interviews with the subjects.) The book features a few celebrities: race-car driver Bobby Unser and Ernest Hemingway, or at least the six-toed cats that inhabit his former Key West home. But nearly all the protagonists resemble Franklin Delano Roosevelt’s “Forgotten Man.”

FDR appears, too, when the authors recount his unsuccessful attempt to assert presidential control over the independent Federal Trade Commission. Indeed, Gorsuch’s and Nitze’s book often crosses the usual ideological lines with references to liberal justices, including his past and present colleagues: Ruth Bader Ginsburg’s and Sonia Sotomayor’s agreement with Gorsuch in the case of the disabled construction worker; Sotomayor’s and Stephen Breyer’s agreement with him in a veteran’s disability case. The Warren Court’s William O. Douglas, William Brennan, and Thurgood Marshall all appear, too, as do progressive Judge Learned Hand and Professor Cass Sunstein, while conservative Justices Scalia, William Rehnquist, Byron White, and others go unmentioned.

The irony may be lost on Gorsuch’s critics. In our polarized times, the book will surely be read mostly by his conservative admirers. Justice Gorsuch has attempted to bring this message to nonconservative audiences, in long interviews with the Atlantic and the New York Times. Hopefully the Times subscribers who read the 2017 pre-confirmation attack on Gorsuch as an enemy of “the little guy” will read that new interview—and this book, too.

Photo: Blogtrepreneur

We want to hear your thoughts about this article. Click here to send a letter to the editor.