Over Ruled:
The Human Toll of Too Much Law
by Neil Gorsuch and Janie Nitze
Harper Collins Publishers (August 6, 2024)
304 pages, hardcover, $25.60 eBook $14.99
ISBN-13: 978-0063238473
When the journal was due last month, I was only partially through Over Ruled, a book by Supreme Court Justice Neil Gorsuch that had proven more challenging than I’d anticipated. Introduced as “about real people, their struggles to make their way in a world awash with law, and the toll on their lives and families,” Over Ruled theorizes that Americans no longer understand or trust their fellow citizens so seek to criminalize behavior they don’t like instead of talking through disagreements or negotiating compromises. Government – from local all the way to national – has been happy to oblige with laws, laws, and more laws.
In early America, fewer than 50 crimes were enumerated, Gorsuch writes. Though some say an accurate count is impossible, today “scholars peg the number of federal statutory crimes at more than 5,000” and crimes against administrative regulations are estimated to exceed 300,000. He adds, “many criminal laws are not the direct product of elected representatives accountable to us; they’re the handiwork of agency officials.”
It is impossible to determine what is legal or illegal. Gorsuch writes, “Sure, there’s Title 18 of the U.S. Code, and it is labeled ‘Crimes and Criminal Procedure.’ But in truth, criminal laws are scattered here and there throughout various federal statutory titles and sections, the product of different pieces of legislation and different Congresses.” The disorganized propagation has resulted in overlapping, duplicative laws and others that “when juxtaposed raise perplexing questions about what they mean,” he says.
Worse yet, lawmaking doesn’t seem to be limited to Congress anymore, “Our administrative agencies don’t just turn out rules with civil penalties attached to them; every year, they generate more and more rules carrying criminal sanctions as well,” Gorsuch admits. He relates how the Environmental Protection Agency, the Supreme Court and industrial giant Atlantic Richfield denied Butte, Montana residents a role in decisions about the arsenic pollution cleanup necessitated by decades of mining and ore processing. After it was designated a Superfund clean-up site, any removal, even private landowners’ personally funded efforts, was restricted by the EPA.
Gorsuch tells the stories of apple growers and fishermen staggering under regulations that bankrupt smaller operations. Is it any wonder much of our food is sourced offshore and imported by mega-corporations? Large corporate food producers influence federal regulations that inequitably affect small farms and ranches. The harm goes beyond lost income and opportunities, fines, and other financial losses; the greatest loss is from human suffering, he suggests. Federal lawmakers and bureaucrats enforcing regulations from several thousand miles away are ill-equipped to recognize, much less feel concerned about harm to individual citizens.
Gorsuch observes that the men who drafted the US Constitution were deeply concerned about central, concentrated rule despite having experienced the flaws of the original Articles of Confederation. He tells the story of early legislators arguing about mail routes for the new, national postal service. Today, Congress would probably never be consulted. The SEC, the SSA, the FTC, and a thousand other agencies set their own rules, adjudicate offenses in front of their own judiciary, and seem unashamed that verdicts handed down by the administrative judges their own agencies employ usually go against the citizen.
Gorsuch writes a fascinating history of the rise of this unelected fourth arm of government, going back to Woodrow Wilson and the early 1900s, through the Nixon presidency, then up to today where plaintiffs face little chance of winning appeals against administrative agencies.
Lost has been the direct cause-and-effect result of electing leaders and charging them with moving America the direction we wish. Citing plummeting numbers of voters, Gorsuch asks, “What happens when we ... lose our appetite for participation in public life; when we become so accustomed to taking directions from a ‘bevy’ of experts that we cannot imagine doing things any other way?” One result, suffered by several citizens in cases he cites, is unresponsive bureaucrats who ignore pleas to reconsider wrong decisions. The mainstream media spouts statistics about the high percentage of young men from racial minorities serving prison sentences, but Gorsuch observes that 30% of prisoners serving life sentences are over 55; and sentences for non-violent crimes sometimes exceed hundreds of years. Those who are released before old age and death claim them “often confront collateral consequences that haunt them for years—including the loss of voting rights, licenses, public benefits, jobs, and access to housing,” he adds.
The rule of lenity has evaporated, with government “heaping on overlapping charges.” Relentless prosecutions promote plea bargaining. Gorsuch estimates that “97 percent of felony convictions at the federal level and 94 percent of felony convictions at the state level have come by way of plea agreements.” Not only is punishment greater if the defendant refuses to plead, then loses at trial, paying a lawyer is too expensive for many, he writes, adding, “Low- and middle-income Americans face an access-to-justice crisis.”
Between 2021-2023 Americans learned that the federal government, state government and numerous bureaucracies were all too willing to restrict freedom to assemble, travel, do business and practice religion. Gorsuch thinks this has contributed to citizens disengaging from community involvement. We need to work together, he stresses, and that means civil discourse, mutual problem solving, and grassroots solutions. “Our civic associations are the places where that trust and those habits [of listening to and engaging with others of different views] were once learned.”
That all came to a screeching halt when the Center for Disease Control shut down the country during the pandemic. Gorsuch tells of a social club where recovering addicts could socialize and support one another in the fight not to relapse. It was shut down during COVID. Isolation, experts say, is an element of addiction, but that was of little concern to the CDC or to states that were happy to flex regulatory muscle. People in recovery weren’t the only victims: nursing home patients were denied visitors, people who lived alone no longer benefitted from “impromptu interaction” with others at store checkout lines, in coffee shops, or in bookstores. Doctors worked via telemedicine; pastors held services online; teachers tried to conduct classes over Zoom. Poor families without Internet connections or computers were shut out. When the population began to push back and tried to hold prayer services or family dinners, a bureaucracy eager to restrict what happened inside peoples’ own homes swooped in.
These abuses were nothing new. Historically, Catholic social services placed a lot of homeless children in foster homes but selected parents who follow the church’s views about marriage. In Philadelphia, the city stopped placing children through the Catholic service believing the bias toward married foster parents discriminated – until the supreme court found the church was constitutionally entitled to honor the rules of its faith when choosing foster parents to work in their services.
Gorsuch reports on other corrections, too. In Texas, extreme regulations once kept the poor from setting up small businesses braiding hair and doing hair removal because licensing and training was prohibitively expensive. Happily, TX overthrew the licensing requirements. Other states have also started reducing the burden of their laws. In Idaho, the governor was assigned to refine the state’s administrative code in 2019 and after a number of public meetings, removed about 20 percent of the outdated regulations and simplified another 20 percent. Rhode Island cut out about 30 percent of its administrative code, and Florida and Ohio eased or removed much of the professional licensing once required. Utah started an experimental program to relax the costly rules under which law firms had to operate, while Arizona, California and Colorado expanded the range of services nonlawyers can provide.
Gorsuch is surprisingly optimistic as he looks to the future and describes the challenges of reuniting America. He comments that while the federal government annually spends about $54 per student for science, technology, engineering, and math (STEM) classes, less than 5 cents per student goes to teach civics. He names several foundations that provide materials to teach civics at no cost. While part of the solution, “none of these institutions or others like them can fully remedy our civic education deficit. For that, there must be an individual will to learn, as well as sustained efforts in our schools to teach.” Understand, he adds, “that civic education doesn’t have to be a partisan or boring affair. Instead, it can be about telling the full American story in all its complexity—and in that way it can help form citizens equipped to serve as sound stewards of the liberties entrusted to their safekeeping.”
In failing to understand how American government functions, citizens also fail to understand how people of differing viewpoints can talk, negotiate, and reach agreements on how things are run. Gorsuch cites studies showing substantial decreases in church going and civic and social club participation and compares today’s isolation and self-centeredness against the lively negotiation required of the delegates to the Constitutional Convention in 1787. While some of the founding fathers were hotheaded, and even insulted one another occasionally, they were able to agree on the constitution. By contrast, a survey showed that one-fifth of college students believe violence is an acceptable way to silence “offensive or hurtful” speech, and 55% of respondents told the Pew Research Center government censorship was OK to restrict false information online. What happened to the first amendment?
Gorsuch is no cheerleader. He admits to concern about the nation’s future. “While some law is essential to our democracy and liberties and the equal treatment of all people, too much law can undermine all of those things and even respect for law itself,” he admits in the book’s epilogue. He fears the urge to expect government to solve our every problem will lead to a big, remote government with rules that can change without warning, and where only the wealthy and well connected thrive.
Still, the American experiment, the failure of which foes and doubters have predicted since the beginning, continues. “Almost 250 years later, here we stand. For much of our history, the promise of equal treatment under the law looked more like an unserious fiction than an earnest ambition. Yet while much remains to be done, we have made many strides to realize that promise, from the Civil War to the Civil Rights Act of 1964. World wars, terrorist attacks, political assassinations, economic depressions, the fall of other countries to communism and fascism, and so much more have tested our nation, too. Still, America remains the greatest beacon of liberty the world has ever known. The ideals embodied in our Declaration of Independence—that each of us enjoys certain inalienable rights, that all of us are created equal, that governments derive their just power from the consent of the governed—have inspired billions of people around the world and captured truths that resonate in every human heart. I would never bet against the American people,” he concludes.