As U.S. Supreme Court Justice Neil M. Gorsuch sees it, an explosion in the complexity of the nation’s regulations is overburdening Americans and often trampling their rights and livelihoods.
Less than a century ago, the laws of the United States could fit into a single book, but since then they have swelled to fill enough volumes to take up an entire shelf in his office, Gorsuch said Thursday night during a conversation at the Ronald Reagan Presidential Library in Simi Valley, Calif.
The Federal Register listing government regulations is now about 60,000 pages, and the number of federal crimes has grown to roughly 5,000 by some estimates, said Gorsuch, who is promoting a book, “Over Ruled: The Human Toll of Too Much Law,” which he co-wrote with a former clerk, Janie Nitze.
Gorsuch said that ever-expanding system has created a Kafkaesque maze, where Americans sometimes violate rules and regulations they didn’t know existed, compliance has become overly onerous, and even regulators sometimes don’t know the laws they are tasked with enforcing.
“I’ve been a judge now coming on 20 years,” he told the Reagan Library audience. “I’ve just seen so many cases come through my courtroom where ordinary Americans — decent, hardworking people who are trying to do their best — are just getting … thwacked by laws unexpectedly.”
Gorsuch illustrated his point by delving into several real-life vignettes from his book, involving magicians, monks and a hair-braider who found themselves in fights — sometimes surreal — with regulators.
He told the story of a commercial fisherman in Florida who was charged under a law, passed after the Enron corporate accounting scandal, that forbids the destruction of documents and “tangible objects” to impede a federal investigation. The man’s alleged crime: disposing of fish.
The government alleged that John Yates destroyed evidence by dumping his catch after a routine inspection found that the fish were smaller than the legal limit, then replacing them with other fish, a contention Yates denied. Prosecutors argued that the fish were tangible objects under the Sarbanes-Oxley Act.
Yates was eventually convicted and served 30 days in jail, but he appealed his case to the Supreme Court, which overturned his conviction in 2015, finding that the law was never meant to apply to such circumstances. By then, the legal drama had upended Yates’s life and career as a fisherman.
Gorsuch said the heavy reliance on laws has many causes, but it may have to do with the nation’s fraying bonds of community and trust. He lamented the downfall of churchgoing, the decline in social clubs and the deepening political divide in recent decades.
“If I trust you and my local community and we can work together to solve problems, we don’t need to resort to law for everything,” Gorsuch said. “We have a lot of work to do on civility and civics.”
The justice said too many schools have dropped civics classes, and he urged people to lobby their local districts to reinstate them. He said it was shocking that, as surveys have shown, many Americans cannot name all three branches of government.
The appearance at the library was part of a series of interviews by the Donald Trump-appointed conservative, who like other justices rarely speaks to the media. In the recent blitz to promote his book, Gorsuch has expressed reservations about President Joe Biden’s plans to overhaul the Supreme Court and defended a blockbuster ruling from the high court in July that granted Trump broad immunity from criminal prosecution for his official acts as president.
Gorsuch, who became a Supreme Court justice in 2017, told Fox News in an interview aired Sunday that he would not offer an opinion on Biden’s proposed changes for the court, which include 18-year term limits for justices and a stronger enforcement mechanism for its ethics code, but he worried about the impact of any overhaul, saying it could make the judiciary less independent.
“It’s there for the moments when the spotlight’s on you, when the government’s coming after you,” Gorsuch said of the court system. “Don’t you want a ferociously independent judge and a jury of your peers to make those decisions? Isn’t that your right as an American? And so I just say, be careful.”
Gorsuch’s comments came after Justice Elena Kagan struck a different tone, recently telling an audience in California that she would support the creation of a committee of judges to examine potential violations of the court’s ethics code, which critics have complained is toothless.
In a second interview with Fox News, aired Tuesday, Gorsuch defended the court’s decision on presidential immunity, which arose out of a criminal case against Trump related to his efforts to subvert the results of the 2020 election.
Gorsuch framed the decision as an outgrowth of a Nixon-era ruling by the court that insulated presidents from civil suits after they leave office, so as not to chill their actions while in office.
“All the court did in this case was simply apply that same precedent and idea to the criminal context,” Gorsuch said.
The Supreme Court has sharply curtailed the power of federal agencies in major rulings in recent terms.
The court struck down a 40-year-old bedrock of administrative law known as the Chevron doctrine that required courts to give broad deference to federal agencies’ interpretations of ambiguous statutes.
The court has also put on hold a major plan by the Environmental Protection Agency to combat smog-forming pollution that drifts across state lines, curtailed the EPA’s ability to regulate greenhouse gases and limited its powers to protect wetlands. It also invalidated the Securities and Exchange Commission’s use of in-house tribunals to go after securities fraud, among other actions.
