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PORTSIDE CULTURE

THE MYSTERY OF NEIL GORSUCH  
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Andrew Koppelman
March 19, 2025
Los Angeles Review of Books
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_ "The principal virtue of the book," writes reviewer Koppelman, "is
the light it unintentionally sheds on some of the Supreme Court’s
least defensible decisions." _

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_Over Ruled: The Human Toll of Too Much Law_
Neil Gorsuch and Janie Nitze
Harper
ISBN: 9780063238473

IN HIS NEW BOOK _Over Ruled: The Human Toll of Too Much Law_,
co-authored with Janie Nitze, Supreme Court Justice Neil Gorsuch makes
an important and valuable point: in recent decades, we have vastly
increased the number of laws in the United States, producing such
complexity that even lawyers are sometimes unable to tell what the law
is. Unfortunately, his book is persistently distorted by minimal-state
fantasies that are likely to hurt the people he most wants to help.
And the two authors sometimes misrepresent the facts of the stories
they tell. Both of these problems also infect Gorsuch’s judicial
opinions. The principal virtue of the book is the light it
unintentionally sheds on some of the Supreme Court’s least
defensible decisions.

The central concern of Gorsuch and Nitze is the sheer volume of law.
At the federal level, the number of regulations has become enormous.
The Federal Register and the Code of Federal Regulations have grown
into immense multivolume sets. Agencies also issue informal
“guidance documents” that interpret those regulations, even more
voluminous than the rules. “[B]oth regulators and the regulated
often treat guidance as binding, and many of these guidance documents
are not easily available to the public […] some have been found only
in the desk drawers of agency employees,” Gorsuch and Nitze lament.
Judicial decisions add to the complexity. The result, the authors
write, is that “ordinary people are often caught by surprise, and
even seasoned lawyers, lawmakers, and (yes) judges sometimes struggle
to make sense of it all.” Even compliance is burdensome: “By the
government’s count (probably an underestimate), Americans today
spend 9.78 _billion_ hours a year completing federal paperwork.”

 
Gorsuch and Nitze rarely mention the actual dangers that called forth
this regulatory apparatus. They are particularly outraged by the
restrictions imposed during the COVID-19 epidemic—in _Arizona v.
Mayorkas_ (2023), Gorsuch called
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“the greatest intrusions on civil liberties in the peacetime history
of this country,” evidently forgetting slavery and the Jim Crow
laws—but doesn’t seem to notice that it killed a million Americans
and, absent shutdowns and mask mandates, would have killed many more.

The authors are right that as regulations accumulate, the complexity
becomes daunting. Steps should be taken to recodify and streamline the
law, and make the administrative process more navigable. Some laws are
simply corrupt goodies handed to special interests, such as licensing
requirements for hair braiders and interior decorators. Others, as
Gorsuch and Nitze point out, are stupid relics: “Is there anyone who
thinks it’s a good thing to maintain on the books a law that forbids
cursing in front of women? Or one that penalizes playing the National
Anthem out of tune?”

None of these needed reforms, however, can be undertaken by judges,
who can’t discern when laws are unnecessary and certainly can’t
rewrite them. So Gorsuch hasn’t got the tools to do the job that his
book calls for. That is good reason for him to write about it. Judges
are citizens too, and they get to participate in public discourse
about all issues, not just those that concern their jobs. And, as a
judge, he frequently encounters the dysfunction he describes. If you
see something, say something.

But as a judge, Gorsuch has gone beyond his mandate, engaging in a
reckless judicial campaign against the modern administrative state
that is oblivious to the problems that necessitated the state
apparatus in the first place. He attacks that apparatus in clumsy and
overbroad ways, ignoring government’s capacity to attack real
problems. He is smart and capable, yet he misreads the plain language
of statutes, misstates the facts of cases, and is reckless about the
consequences of his decisions. These failures of judicial
craftsmanship, on the part of such a distinguished jurist, are
mysterious. _Over Ruled_ helps to explain the mystery.

¤

 
It is impossible here to survey even that subset of Gorsuch’s
jurisprudence that addresses the power of regulatory agencies, so
I’ll focus on just one case to show the effect of his suspicion of
those agencies’ power. Federal law commands the Occupational Safety
and Health Administration (OSHA) to issue an “emergency temporary
standard” if the agency determines that “employees are exposed to
grave danger from exposure to substances or agents determined to be
toxic or physically harmful,” when the standard is “necessary to
protect employees from such danger.” The Biden administration
directed employers with 100 or more employees to require that their
workers either be fully vaccinated against COVID-19 or tested weekly
and masked at work. The court, with Gorsuch in the majority, held in
_National Federation of Independent Business_ _v. OSHA_ (2022) that
the emergency standard was not authorized by the statute.

The dissenters, Stephen Breyer, Sonia Sotomayor, and Elena Kagan,
noted
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that “the majority does not contest that COVID-19 is a ‘new
hazard’ and ‘physically harmful agent’; that it poses a ‘grave
danger’ to employees; or that a testing and masking or vaccination
policy is ‘necessary’ to prevent those harms.” The majority
responded that, because the court will “presum[e] that ‘Congress
intends to make major policy decisions itself, not leave those
decisions to agencies,’” it will not allow an agency to act on
“major questions” unless there is “‘clear congressional
authorization’ for the power it claims.” Why wasn’t the statute
clear enough to satisfy the “major questions” doctrine? The court
explained that the regulation was “a significant encroachment into
the lives—and health—of a vast number of employees.”

Congress, the majority thought, could not have meant to authorize OSHA
to impose such an “encroachment” as vaccination-or-testing. But
the “encroachment” would not have seemed burdensome in 1970, the
year the law was passed. Vaccination was a wonderful gift that anyone
would be crazy to refuse. People remembered children crippled by
polio. COVID is deadlier. Gorsuch’s concurring opinion found it
extraordinary to “induce individuals to un­dertake a medical
procedure that affects their lives outside the workplace.” Affects
them how? By letting them safely go home to their families? By
preventing them from infecting co-workers? A protection from workplace
hazards that persists after work wouldn’t bother anyone who had not
been listening to anti-vaxxer pundits.

Gorsuch likes to claim he is a strict textualist. But here he wrote
that OSHA exceeded its authority because the danger of COVID was not
“uniquely prevalent inside the workplace, like asbestos and rare
chemicals.” But the statute’s protection is not confined to
dangers “uniquely prevalent in the workplace,” a phrase that
appears nowhere in the statute. The dissenters point out that “OSHA
has issued, and applied to nearly all workplaces, rules combating
risks of fire, faulty electrical installations, and inadequate
emergency exits.” By Gorsuch’s reasoning, OSHA could not require
that construction workers be given hard hats, because traumatic brain
injury is not uniquely prevalent inside the workplace.

He emphasized the “nondelegation doctrine,” which holds that
Congress can’t give away its power to legislate. If the law
authorized what OSHA had done, “that law would likely constitute an
unconstitutional delegation of legislative authority.” Why would
Congress consider such a broad delegation? In the book, Gorsuch and
Nitze write: “In our eagerness for quick solutions, we sometimes
look to agency officials rather than our elected representatives.”
But there’s a more obvious and innocent explanation. Many problems
in the world constantly take new shapes. They require considerable
expertise even to detect and diagnose: pollution, financial market
fraud, dangerous or ineffective pharmaceuticals, hazardous consumer
products. Among these is workplace hazard. Congress knows that it
can’t figure out, on an ongoing basis, which substances, biological
or chemical, are toxic for workers to inhale. So it reasonably
delegates to OSHA the task (quoting the statute
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insofar as practicable that no employee will suffer diminished health,
functional capacity, or life expectancy as a result of his work
experience.” There are mechanisms that aim to ensure that the
burdens on citizens and businesses are justified. Since the Reagan
administration, federal regulations have been subjected to
cost-benefit analysis—a highly technical undertaking that is far
beyond the capacity of courts. Gorsuch’s proposal is pretty radical.
As Kagan wrote, in _Gundy v. United States_ (2019), if broad
delegations to agencies are unconstitutional, “then most of
Government is unconstitutional.”

Gorsuch supplements his argument with another, remarkable objection:
OSHA improperly imposed the rule “at a time when Congress and state
legislatures were engaged in robust debates over vaccine mandates.”
Those debates happened almost 50 years after the law was enacted. How
could they have changed the meaning of the law? But Gorsuch isn’t
kidding: in another case, which nullified a regulation of polluting
power plants (_West Virginia v. Environmental Protection Agency_ in
2022), the Supreme Court scolded that similar regulation “has been
the subject of an earnest and profound debate across the country,”
and Gorsuch, again concurring, saw “a relatively easy case” for
invalidation because “whether these plants should be allowed to
operate is a question on which people today may disagree.”

In short, Gorsuch thinks that a regulation becomes “major” enough
to trigger the major questions doctrine if, among other factors, the
policy is politically controversial today. An agency can lose the
authority to _do something Congress has told it to do_ if, decades
later, it is denounced on Fox News. Right-wing chatter gets to amend
the US Code. The legal effect of the chatter depends on the discretion
of unelected judges—not just the Supreme Court but any district
judge who can be persuaded that a regulation is “major.” _The
Washington Post_ reports that the court’s new restraints on agencies
(of which, again, this is only a sample) have produced
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“dozens of lawsuits that could invalidate a vast array of federal
climate, education, health and labor rules.”

Gorsuch’s book traffics in stories. But notice the stories he is
trying not to hear—of people infected at work, defrauded, denied
healthcare, or poisoned by pollution. OSHA estimated (and the court
did not dispute) that in the first six months of the pandemic, its
rule would prevent 6,500 deaths and 250,000 hospitalizations. Gorsuch
tends to think that if government doesn’t interfere, whatever
happens is freedom. Consider arbitration provisions in contracts,
which typically require the economically weak contracting party—the
consumer or employee—to waive access to courts for disputes that
arise out of the contract. Such provisions remit those disputes to a
forum designed to the specifications of the stronger party, which
drafted the provision. The corporation that drew up the contract
always gets a veto over who the arbitrator will be, so arbitrators
have an incentive to please those who are repeat players.
Unsurprisingly, plaintiffs usually lose, at a far greater rate than if
they can take their cases to court. Should such waivers of legal
rights be enforced?
 

Gorsuch articulates the question like this in _Epic Systems Corp. v.
Lewis_ (2018): “Should employees and employers be allowed to agree
that any disputes between them will be resolved through one-on-one
arbitration?” His creative reading of the federal arbitration
statute (he ignored a provision saying that arbitration provisions do
not apply to “workers engaged in foreign or interstate commerce”)
killed three class action suits brought by employees who claimed that
they had been illegally underpaid. One reason employers are tempted to
cheat their workers is that the amounts, individually, usually are not
worth litigating. Individuals are unlikely to risk the displeasure of
their employers to recover small underpayments, and from the
employer’s point of view, the small wrongs can add up to a nice
gain. The problem of such cumulative wrongs is the primary
justification for class action suits, in which a group of plaintiffs
with similar claims can aggregate them into a single lawsuit. A regime
in which employees’ rights are nullified by boilerplate contract
terms is here imagined as a new form of freedom, in which the parties
commit to what Gorsuch charmingly calls “individualized arbitration
procedures of their own design.” In practice, that means that
employees are denied any effective remedy for wage theft.

Gorsuch, however, is fixated on anecdotes of bad government behavior:
the bureaucrats need to be constrained somehow. But even the anecdotes
don’t help him if he gets their facts wrong. He and Nitze begin the
book with the purportedly outrageous injustice done to John Yates, a
commercial fisherman who was convicted of a crime after federal agents
went “rummaging through” his catch and “declared” that some of
the fish were too small. The agents told Yates to preserve this part
of the catch, but later found that the measurements did not match, and
concluded—rashly, the authors suggest, because they think the
agent’s measuring skills were questionable—that Yates had thrown
the small fish overboard. Yates was charged with violating the
Sarbanes–Oxley Act, which prohibits altering or falsifying “any
record, document, or tangible object” with intent to impede a
federal investigation. He appealed his conviction, and the Supreme
Court ultimately concluded that the act applied only to tangible
objects that are used to record information. Gorsuch and Nitze claim
that the evidence was weak (although Yates was convicted by a jury)
and wonder how it is possible that “not one of the dozens of
officials who touches his case says, ‘Wait a minute …’”

If, however, you look at the Supreme Court opinion in _Yates v. United
States_ (2015), you learn: “Under questioning, one of the crew
members admitted that, at Yates’s direction, he had thrown overboard
the fish Officer Jones had measured at sea, and that he and Yates had
replaced the tossed grouper with fish from the rest of the catch.”
That violated not only Sarbanes–Oxley but also another statute that
prohibits destroying property to prevent federal authorities from
seizing it. (The Court of Appeals decision adds: “After the switch
was completed, Yates instructed [the crew member] to tell any law
enforcement officers who asked that the fish in the wooden crates were
the same fish that Officer Jones had determined were undersized.”)
Yates did not challenge that conviction. He would probably have
received the same punishment—a 30-day prison sentence—even without
the Sarbanes–Oxley charge.

Gorsuch and Nitze concealed one of the most important facts about
their leading illustration. It is understandable, if not excusable,
when an advocate does this. It is a rookie error sometimes committed
by lawyers with underdeveloped ethics and prudence. But what have
Gorsuch and Nitze to gain by lying to the reader—and lying in a way
that is so easily caught? It appears that their tale so mesmerizes the
authors that it distorts their perception of the world. They may not
even notice that they are hiding facts. (The same thing happened in
the 2022 case _Kennedy v. Bremerton School District_, in which Gorsuch
falsely described
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football coach’s pattern of bullying his players into praying with
him as a “short, private, personal prayer.”)

Gorsuch and Nitze write that Yates’s “story isn’t an uncommon
one today.” They never explain how they know this. Many of their
other horror stories are old tales (some over a decade old) that got
media prominence because they were so unusual. The Yates story isn’t
even anecdotal evidence, because the authors misreport it. When a
_Politico_ reporter pressed Gorsuch on this
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in writing—Gorsuch did an extensive series of interviews with
conservative media but refused to speak to that reporter—his
co-author, Nitze, responded that _Politico_ had omitted the same facts
in a piece that it had published in 2014. The piece was an account by
Yates himself, published before the oral argument in his case. The
fact that Yates misled his readers doesn’t excuse Gorsuch and Nitze
for doing it.

¤

Gorsuch’s campaign against regulation is best understood as
reflecting a minimal-state philosophy that appears nowhere in the
Constitution. I anatomize this view in my 2022 book _Burning Down the
House: How Libertarian Philosophy Was Corrupted by Delusion and
Greed_,_ _which aims to be a sort of Narcan for people who are drawn
to these dangerous ideas. (Give it to your young libertarian friends.)
Those ideas are easily recognizable in Gorsuch’s complaints.

I thought that refuting those ideas was pretty important because—as
I showed in an earlier book, _The Tough Luck Constitution and the
Assault on Health Care Reform_ (2013)—they animated the preposterous
constitutional challenge to Obamacare. Today, Trump’s Caesarism
looks mighty distant from anything libertarianism, but he deploys
libertarian rhetoric when that is convenient. Trump and Gorsuch are
united in their contempt for the apparatus that contains disease,
ensures clean air and water, and tries to limit global climate
catastrophe. As this is written, Trump is recklessly smashing federal
agencies, in ways that are manifestly
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unconstitutional.
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But will the Supreme Court say so? Will Gorsuch?

Gorsuch told
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an interviewer, “I’m not with my libertarian friends and saying,
‘Everything has to go and anarchy should reign.’” Perhaps those
friends have more influence on him than he suspects.

 

 

Andrew Koppelman, [[link removed]] the John Paul
Stevens Professor of Law at Northwestern University, is the author of
_Burning Down the House: How Libertarian Philosophy Was Corrupted by
Delusion and Greed_
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(St.Martin’s Press, 2022).

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