Justice Gorsuch’s Fight With Bureaucracy Should Start With Courts | Opinion

Everyone complains about bureaucracy, but, as with the old joke about bad weather, no one ever seems to do anything about it. In his new book Over Ruled, Supreme Court Associate Justice Neil Gorsuch, and his co-writer Janie Nitze hope to change that.
Gorsuch does a good job bringing the problem to light. His book is salted with statistics but dominated by stories of how too much law is wrecking real-life Americans.
His anecdotes are certainly meant to make the blood boil. In the book, police enforcing nonsensical regulations are constantly dropping from the trees and handcuffing unsuspecting fisherman, orchid growers, burping boys, and coffin-making monks. We watch while federal zoo regulators hound a poor magician to get an animal-exhibitor’s license and create an emergency evacuation plan for the rabbit he pulls out of his hat. Gorsuch makes marvelous use of the cartoon Schoolhouse Rock! to point out that even the law discussed in that popular ditty was created by an agency—by bureaucrats—instead of Congress.
Gorsuch is correctly concerned about the “immense and often largely unreviewable power” of agencies and eloquently argues that it injures “our nation’s respect for the individual—for the dignity that exists within each of us.” He rightly deplores allowing secretive, shifting written agency “guidance” to be treated as law. He calls out agency capture—how big companies support complex regulation that squashes small competitors. He even touches—too briefly—on the legal system, noting the outsized roles of prosecutors, over-priced lawyers, the dominance of forced plea bargains, as well as vague and excessively punitive laws.
But finding his architecture for a better system is pretty hard. He appears to favor local control. He sees people dropping out of community service because federal control leaves them too little say over their lives. He hails past presidents for recognizing the problem and discusses efforts to reduce the number of laws we face through revision commissions and the like. But he’s vague. He allows those who would dismantle most of the federal government to see him in sympathy with them instead of clarifying when enough law ends and too much law begins.
For example, just before praising local control, Gorsuch complains about federal persecution of a fisherman with undersized fish. Surely, he doesn’t think we should abandon efforts to preserve America’s fish stocks? And he can’t mean that Florida, Alabama, Mississippi, Louisiana, Texas, or their individual communities should be allowed to adopt conflicting fish-size regulations for the Gulf of Mexico.
So, what does he mean when he complains about fishing regulations and other mandates like the picayune purity rules for poultry and other meat? Doubtless, he wants to feel just as safe biting into a hot dog in Kansas as he would in California. It must be the bone-headed excesses associated with the individual prosecutions that bother him—not the very existence of regulation.
Gorsuch’s argument about the beauties of local decision-making should have also considered the disparity of regulatory resources between rich states and poor states and addressed the reality that a local bureaucrat can be just as annoying as a federal one. Similarly problematic is the claim that people shun community volunteerism because the key decisions are made elsewhere. The things that effect American families most are, despite any federal mandates, still largely locally controlled, including municipal police, roads, parks, and, above all, schools.
Something is missing when he talks about viruses too. He’s sharply critical about government actions during the COVID-19 pandemic. But he undercuts the book’s main argument when he complains about the pile of arbitrary and contradictory local rules that resulted. Again, he doesn’t share with us what he thinks should have been done. Does he believe government should have done nothing about the pandemic or should we have had one set of minimally invasive rules across the country?
One of the best things that comes out of the book is Gorsuch’s sense of humanity and pragmatism. This is a delightful surprise from a publicly avowed textualist. Only a highly textured textualist would agree with him that a fish isn’t a “tangible object” whose destruction was a crime under federal law. A strict textualist would say that plain words win, not the title or the background of the law. But perhaps he’s signaling a move away from formalism and toward common sense. We can only hope so.
Anyway, Gorsuch tells a good story but pulls no righteous rabbits of reform out of his hat. But here’s how he could. He could write a second book focusing on the bureaucracy of the courts. Many of the stories he told reflect poorly on the courts with cases taking six years, eight years, and more to sort out simple abuses by agencies.
Developing solutions and training judges to use them would be a worthwhile place for Gorsuch to direct his energy. What if judges managed lawsuits to reign in prosecutors, consolidate motions, put judges in charge of evidence discovery, require stipulations of undisputed facts at trial, fix the amount of time allotted to each side at a trial, and deliver swift understandable rulings? That would reduce bureaucracy. In other words, Gorsuch should make it his next mission to recognize that, like charity, reform begins at home.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.