At the close of the Supreme Court’s last term, Justice Neil Gorsuch concurred in the court’s 6-3 decision discarding the 40-year-old Chevron doctrine, which required Article III judges to defer to federal agencies when Congress’s statutory language is ambiguous. Gorsuch noted while “sophisticated entities” can hire lawyers and lobbyists to “keep pace” with ever-changing regulatory provisions, “ordinary people” cannot. It is they, wrote the associate justice from Colorado, who are the beneficiaries of Loper Bright Enterprises v. Raimondo.

In Over Ruled: The Human Toll of Too Much Law, Gorsuch and his co-author, former Supreme Court clerk Janie Nitze, write expansively of those “ordinary people” and the human toll exacted on them, which includes decades of fear, financial hardship, and stress, ending, at times, in imprisonment, bankruptcy, and madness or suicide. Over Ruled, as its title provides, is about the “rule of law,” but it is not at its core about the law, lawyers, or judges. Instead it is “a book of stories” of people grievously affected by “too much law.” It is no breezy narrative, however, but a deep dive — revealed by its 1,000 endnotes — into the aspiration of the founders when they created the “miracle” that is our constitutional republic, what happened along the way to put us into the situation where every person likely commits “three felonies a day,” and how we extricate ourselves from the mess we have made of things. 

As Nitze acknowledges, it says volumes about Gorsuch, specifically as to his wisdom, conscientiousness, and generosity, that, “in a city dominated by ghostwriters working in anonymity, he not only penned every word of this book, but then insisted on giving me credit as co-author anyhow.” That Gorsuch is a skilled writer is evident from his opinions at the U.S. Court of Appeals for the 10th Circuit in Denver and the Supreme Court over the years. Over Ruled demonstrates not only that but also his compassion for individual Americans and his commitment to what the founders sought from the law, that is “ordered liberty” that would keep “’government off the backs of people’ and allow them room to author their own lives.”

One of the stories related by Gorsuch is that of my former client, famed New Mexico race car driver Bobby Unser of Albuquerque. 

Unser, 63 years old and three-time Indy 500 winner, on a beautifully clear December day in 1996, went for a snowmobile ride in a national forest in southern Colorado. When a dangerous blizzard swept down upon Bobby and his friend, they were in deadly peril. Quickly they became disoriented and then lost as they struggled to find their way to safety. Eventually, they made it to civilization, but not before they had abandoned their snowmobiles in the deepening snow, spent the night shivering in a hastily carved snow cave, and hiked out of the national forest, through waist-deep snow, for 18 hours. They nearly died.

Although Bobby’s safety was assured, his legal peril was just beginning. The Clinton administration charged him criminally with operating a snowmobile in a federal wilderness area; he faced six months in jail. I argued Bobby had not been in the federal wilderness area, but if he were, he was there out of necessity or because of an emergency. That is, he had no intention of being within the federal wilderness area, an element of the crime. Federal prosecutors insisted that despoiling a wilderness was a “public welfare offense,” which required no proof of criminal intent. A federal district court agreed, and Bobby was convicted without proof of criminal intent.

Later a three-judge panel of the U.S. Court of Appeals for the 10th Circuit rejected my arguments that Bobby was neither in the area nor possessed criminal intent; in fact, the panel held it was up to Bobby, not the Forest Service, to prove where he was during the blizzard. Finally, on the first Monday of October in 1999, the Supreme Court denied Bobby’s petition.

Gorsuch discusses the federal government’s criminal case against Bobby, who died in May 2021 at the age of 87, to make several points including, in passing, the power of the federal government to wage legal warfare against its citizens. It “spent $1 million to brand him a criminal and secure a $75 fine.” 

Not only have the number of federal crimes, which once included “a small number of pretty intuitive and widely accepted norms: do not kill, do not steal, do not rob, and so on,” ballooned to more than 5,000 federal statutory crimes mostly since 1970, their punishments include “higher penalties” as to which “judicial discretion in sentencing” has been removed. Plus, as in Bobby’s case, abandonment of the mens rea, an “evil-meaning mind,” requirement represents “a shift away from a presumption in favor of the individual and liberty and toward collective interests and greater punishment.” Likewise is failure to require “fair notice of the law’s demands,” part of the vagueness doctrine and included in the Constitution’s guarantee of due process of law. Finally, is not applying the rule of lenity, which “encourages judges to pick an interpretation [of a statute ‘susceptible to different interpretation’] that is respectful of the individual.” Today that rule is “an afterthought or curiosity,” “a throwaway doctrine at worst.”

Elsewhere Gorsuch mentions that “powerful interests can capture regulatory processes and use them to entrench their positions at the expense of others who are less fortunate.” That, too, was evident in Bobby’s case as radical environmental groups, eager to punish prominent, conservative people for purported environmental crimes to make others fearful of similar unintentional transgressions, demanded that the Clinton administration prosecute Bobby. Not as to Bobby, but as to other victims of “heavy-handed and unfair enforcement” by federal officials, Gorsuch decries that nothing seems to happen to the federal officials responsible.

Despite that Gorsuch is a Westerner who served for a decade on the federal appellate court overseeing Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming, Over Ruled is not a book about Westerners. Instead, Gorsuch tells troubling stories from across the nation of “fishermen and foster parents, an Amish community, hair braiders and monks, even a magician, and the polydactyl descendants of Ernest Hemingway’s cat.”

These people live in the time feared by James Madison because laws are “so voluminous that they cannot be read, or so incoherent that they cannot be understood[.]” In 2018, the U.S. Code encompassed 54 volumes and 60,000 pages. In 2021, the Code of Federal Regulations spread over 200-plus volumes and more than 188,000 pages. Meanwhile, some 436 federal agencies (no one knows the precise number), over a recent 10-year period, issued 13,000 guidance documents, many of which are unavailable to the regulated public. Those agencies issue rules containing not just civil, but also criminal penalties; in fact, “at least 300,000 federal agency regulations carry criminal sanctions today.” Finally, federal judicial rulings interpreting these laws and rules fill 5,000 volumes, with 1,000 pages per volume.

Gorsuch laments, quoting one scholar, that “there is no one in the United States over the age of 18 who cannot be indicted for some federal crime.” Given the size, budget, and power of the federal government, little wonder that Gorsuch can fill a “book of stories” of its victims and the tragic toll taken upon them. How bad has it gotten? Quoting Stalin’s chief of secret police, “Show me the man and I’ll show you the crime,” Gorsuch asks rhetorically, “Don’t think it can happen here? Ask John Yates, [a Florida grouper fisherman wrongly prosecuted for violation of the Sarbanes-Oxley Act, related to financial recordkeeping]?”

What can be done about what Gorsuch faults as “the recent changes in our nation’s approach to law” for which he blames “[n]o one group, party or impulse”? Admitting that “lasting change … will not come from judges like me,” he suggests instead it will come from “people like those whose stories are recounted here.” In short, those willing to fight back, even for decades to “live free in dignity.” In addition, he proposes:

First, return to a time when we relied on “individual judgement, our neighbors, and our local institutions” rather than using “national authorities to dictate a single answer for the whole country,” including by “criminaliz[ing] conduct with which we disagree.”

Second, restore federalism, which recognizes that, as Gorsuch puts it, “when one government loses its way, another can help light the way back,” especially given that “those closest to a problem often have the best sense of how to resolve it.”   

Third, reform the administrative state with its “experts,” as envisioned by its creator, James M. Landis, who became its harshest critic, “the voice of one crying out in the wilderness.”

Fourth, learn the lessons taught by the response to COVID-19 during which “[p]ublic administration may have been vigorous and efficient. But it did not come without a price.” One heavy price paid:  “[O]ur [COVID-19] rules made an already lonely society lonelier.” 

Fifth, reinstitute civil dialogue, restore a sense of civic responsibility, and rebuild “pride in being Americans.”

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Finally, recognize that putting an end to the “fear of the nocturnal knock at the door” “depends on the courage and sacrifice of men and women willing to stand up, even at a high personal cost, to defend the rights to democratic self-rule, equal treatment, life, liberty, and the pursuit of happiness that belongs us all.”

Justice Gorsuch concludes that, “while much remains to be done,” he is an “incorrigible optimist” that “the greatest beacon of liberty the world has ever known” can accomplish it. “I would never bet against the American people.”

Mr. Pendley, a Wyoming attorney and Colorado-based, public-interest lawyer for three decades with victories at the Supreme Court of the United States, served in the Reagan administration and led the Bureau of Land Management for President Donald Trump.