Associate Justice of the Supreme Court Neil Gorsuch joined me this morning to discuss his new book, co-authored with Janie Nitze, “Over Ruled: The Human Cost of Too Much Law.” It is a superb read, an something of an alarm bell, and every employee of every government at every level ought to read it.

Audio:

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Transcript:

HH: Joined by Justice Neil Gorsuch, Associate Justice of the United States Supreme Court. Good morning, Justice. Welcome back to the Hugh Hewitt Show.

NG: Good to see you, Hugh.

HH: It is a fabulous book, and I cannot recommend Over Ruled enough. I want people to know it’s two words, Over Ruled, and that you have a co-author, Janie Nitze. And let me begin by asking you about her. She must be a phenomenal person, because your footnotes, the kind of stuff you’ve got clerks to do, she did for you. Wow, what a job.

NG: Hugh, thank you very much for allowing me the chance to brag on Janie. She is one of the most remarkable people of her generation. Her family escaped Czechoslovakia in 1968. And I don’t know any young person who loves America or cherishes its freedoms more than Janie. First generation to this country, triple Harvard, physics undergraduate, statistics Masters, Harvard Law School top of her class, clerked for both me and for Justice Sotomayor, was appointed to the President’s Privacy and Civil Liberties Oversight board, Senate confirmed, mother of three young children, and dissatisfied with daycare in her community. She started a daycare center all while writing this book with me.

HH: Well, she’s a fabulous writer-researcher, and I want to say, as I’m reading along in Over Ruled, I see a reference to Frank Allen, a professor of law at Michigan when I was there. And I thought well, I haven’t seen a Frank Allen reference forever. He finished teaching at Michigan in ’86. And I go and find out it’s a 1981 University of Pittsburgh Law Review article, Justice. I know you are not, you know, running around the stacks pulling off University of Pittsburgh Law Review articles. How long did she work at finding this stuff?

NG: We worked for four years on this book together. And it is the product of a lot of research and a lot of thinking. And it’s questions that both she and I have been thinking about, frankly, for a long time, Hugh. So it’s nice to see it come all together finally.

HH: Well, you and I are going to agree a lot, but I want to begin by offering you an invitation to Chapman Law School, because I would like to do Resolve, and have a discussion with you on this resolution that the United States Supreme Court does not work hard enough, fast enough, or with due concern for the precarious state of liberty that we find ourselves in. What do you think?

NG: (laughing) I just finished a very long term, and I’m pretty beat from it. Now I’m not complaining. I get about eight weeks in the summer off, and I’m, me and schoolteachers are about it. So I’m one of the luckiest people I know. But you give us the 70 or so hardest cases in the whole country every year to work on. There are nine of us. Can you get nine people to agree on where to go to lunch, Hugh? And appointed by five presidents over 30 years, and yet we managed to reach unanimous judgment about 40% of the time. So that’s the product of a lot of hard work and collegiality and respect, and I’m tired.

HH: I raise that question facetiously, but against this backdrop, Justice. There are 2.87 million federal employees. There are 19.23 million state and local employees. The administrative state is gigantinormous. I was a member of it, along with your mother during the Reagan years, and I have watched it grow. And I practiced against it. It is a giant blob, and you know these stories. We’re going to talk about some of these stories. I just want you folks in there thrashing away at that every day, because they are grown out of control.

NG: Well, that’s, you know, this evolved, this thought came to me over the course of being a judge now about 18 years, and how often I saw ordinary Americans just trying to go about their business, not trying to harm anybody, trying to do right by their neighbors, just getting whacked by laws unexpectedly. And as Janie and I dug into it, what do we find? We find that the U.S. Code has just about doubled since the 1980s in length. Everybody says Congress isn’t busy. Congress adds about two million new words to the federal law books every year, according to some sources. And of course, that’s just the tip of the iceberg. The federal regulatory rules, the federal register, didn’t exist a hundred years ago, and now it expands by about 60-70,000 pages a year. It’s gotten so overwhelming that I have law professor friends who will say to you that every one of us is a federal felon. And then they will say in case you think I’m exaggerating, I’m not. And you look at the statistics there, there are as many people serving life sentences today in this country as there were serving any sentence back in 1970. One out of 47 Americans is subject to some form of correctional supervision today. So that’s the changing nature of our law in a nutshell, and just what’s happened in my lifetime and yours.

HH: Yeah, I want to say, Justice, I am serious about the need to take the machete to the administrative state, because I practiced against the federal government for 25 years. I’m retired now, and I’ve been teaching Con Law for as long. But I used to go up against the agencies, and the agencies are simply indifferent to the average American. When you told the story of Bobby Unser, when you told the story of all these variety of people, and we’ll talk about them, they have no chance. And I ran into that. I represented developers who had budgets for high-priced lawyers, but when you ran into a small landowner with an Endangered Species on their property, they were screwed. And I just sort of depend upon the courts to come back and restore some sense of liberty to the American people.

NG: Well, you know, there’s only so much a judge can do, right, Hugh? You hire me to apply the laws, and I’ll do that faithfully. And I like to say, you know, a judge who likes every decision he issues probably isn’t a very good judge. But I’m obliged to apply the law whether I like them or I dislike them. And I do so without fear or favor. That’s the judicial oath. This isn’t a solution that one old man in Washington can devise or affect. It’s got to be something that the American people care about, and they can do something about. And I hope we get a chance to talk about that, too.

HH: We do. I want to talk about all of it, and we’ve got plenty of time. But let’s start with Bobby Unser.

NG: Sure.

HH: Because Bobby Unser, in fact, let me back up. Do you recall the unprotected protected article that Peggy Noonan wrote in 2016 saying that Americans were divided?

NG: I didn’t. I’m sorry.

HH: She said Americans are basically either protected, they have assets, resources, they can afford lawyers, they can deal with the federal government, or unprotected. And when you talk about Bobby Unser or George Norris, or tragically, Aaron Swartz, you’re talking about people who just ran into the federal government and lost. And it’s sort of astonishing that there are that many people readily at hand to tell those stories about.

NG: Yeah, oh, some of them are funny. Many of them are sad. You mentioned Aaron Swartz. You know, here is an internet entrepreneur who made millions as a young person, and had his whole future ahead of him. He did believe very strongly in public access to materials like judicial records and old articles. And he went and he downloaded a whole bunch of material from JSTOR, including articles from 1942 in the Journal of Botany, according to his lawyer. And JSTOR wasn’t happy about that, as you can imagine. And in the end, he returned all the materials. And state prosecutors first brought and then dropped charges after JSTOR said they weren’t interested in pursuing criminal charges. Federal prosecutors, however, brought a battery of charges against him, and he had to spend a great deal of his fortune that he had made defending himself. He was lucky enough to have that. They offered him a plea deal, 4-6 months in prison, I believe, if I recall, and he said you know, I actually think what I did was right under the law, and I want to take it to trial, one of the very few people today who do that kind of thing. Plea bargaining is another new phenomenon in our lifetimes, Hugh, really. Now, 97% of cases plea out. Almost none did 100 years ago. At any rate, when he told the prosecutors he wouldn’t accept a plea bargain, they responded by bringing a battery of new charges against him, upset that he had refused their deal. And he now faced decades in prison. And shortly before trial, with his assets dwindling and embarrassed by the consequences that might follow, he committed suicide. And I just think we have to ask ourselves what do we do with a 24-year old in this country who maybe makes a mistake? Is that the right response? And maybe there were other ways to deal with it besides that. And most astonishing of all to me, after the whole thing played out, the federal prosecutors issued a press release saying they had behaved entirely perfectly.

HH: It is a, it’s an astonishing tragedy. It is not the only one that is told by Justice Gorsuch in his brand-new book, Over Ruled. During the break, I’m going to talk to him about Bobby Unser. And when we come back, we’re going to talk about there’s some good things. But Justice, just before we go to break, you quote Tocqueville a lot. I’m very glad. You used his third edition, so he’d had a chance to refine it a couple times.

NG: Right.

HH: But what Tocqueville saw is not really working anymore. People don’t speak up. You talk about the threats to people who do speak up. I don’t know that we can get back to that climate of protection unless and until the courts stand up for individual citizens against this bureaucracy, and in a methodical kind of way. I’m rather pessimistic about this.

NG: Oh, now that’s where maybe you and I are going to disagree, Hugh, because if we get the chance to talk about some of the green shoots and the hope that I see, and I talk about in the last chapter of the book, I hope we get there. But you’re right. Tocqueville was maybe the most astute observer of America ever, I think. And what he said, and what resonates with me, and what he saw in the 1830s, is that where a great English lord might oversee a big undertaking in England, or a French government might do so, in America, the people in their local communities were addressing their needs and their problems together, collectively. And he also issued a warning. He said that’s the core of democracy, is participation and involvement with one another, trust with one another, and mutual love and respect for the country from one another. And if that’s lost, if we start just worrying about ourselves and not one another, and not trusting one another, he foresaw a potential end to democracy. And he talked about it as we’ll all retreat into our shells, basically, and want, and become a flock of sheep, he described us as potentially being, looking for a shepherd to guide us.

HH: That has not happened, yet, but we are well on the road. Over Ruled details why. Justice Gorsuch’s book is a bestseller. It’s in every bookstore in America. It is made for laymen to read, not just lawyers, not law professors, but every member of the government with some authority ought to read it, because they’ve got to be aware that the power that they wield ruins lives. Over Ruled is full of those stories. I’ll be back with Justice Gorsuch, and I’m going to talk to him during the break. Stay tuned to the Hugh Hewitt Show.

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HH: I am back now with Justice Neil Gorsuch. During the break, this will all appear on the podcast and more of it on tomorrow morning’s radio show. Over Ruled is out there. Justice, you mentioned green shoots. So I want to give people the accurate representation of Over Ruled. One of the green shoots is in Kalamazoo. Now I don’t know if you remember your 1L study group. My 1L study group, all four of them, you know, Brian Mashler, John Deniston, Tim Butler, and Kyle Shaefer, Kyle came from Kalamazoo. And so as soon as I read about Kalamazoo, I wanted to go and read about Kalamazoo. First of all, do you remember your 1L study group?

NG: Vaguely.

HH: Vaguely? All we did was live together trying to figure out what Peter Westen was talking about in Crimes. Kalamazoo is a green shoot. Tell people about the green shoot in Kalamazoo.

NG: So here’s an example of what Tocqueville was talking about, right? Kalamazoo at one point was a very successful, industrial, middle American town in Michigan. And it hit hard times like much of the Rust Belt. Schools were struggling, families were struggling. And the city tried just about everything to attract businesses and family members to move to the community again. And then, they hit on an idea. And they got some anonymous donors, and then others to participate. What if they could guarantee anybody who graduated from high school there a free ride at any state university of their choice? Well, that immediately changed everything in Kalamazoo. I mean, kids were in tears, of course. Parents were overjoyed. But unsurprisingly, school scores went up, and people moved in. Property prices went up. That’s an example of exactly what Tocqueville was talking about. And it’s since been replicated, of course, in a variety of communities across the country. So that’s one example of many I talk about in the book of things that the American people can do to reverse this tide of so many laws encumbering our lives.

HH: You and I are both big proponents of federalism. Let me sneak in one more question before we come back from break. Aren’t some problems too big for federalism? And I’m thinking here specifically about Big Tech, Justice, because it doesn’t seem to me that local governments or even state governments are well-positioned to deal with the enormous problems presented by the concentration of wealth and the concentration of power in Big Tech.

NG: There’s no doubt that a strong national government is important to our liberties. But also, I think we have to ask how are we doing on the balance overall between state and federal authorities. You know, about a third of all money that states spend these days comes from the federal government. Ben Nelson, when he was governor of Nebraska, once quipped that he wasn’t sure whether he was governor of a sovereign state anymore or just a branch manager for the federal government. So I don’t disagree with you that of course, the federal government has an important role to play. I just wonder whether the balance we have today is entirely the way our framers meant for it to be.

HH: Do you anticipate that parts of the federal government will have to grow exponentially to deal with the new problems that present themselves beyond the capacity of the states?

NG: I don’t prejudge that question, Hugh. I don’t know, and that’s really a question for the political branches. I do think it’s worth asking how well we are doing in mediating between, well, let’s back up. Too little law is dangerous, right? We need law to have what Washington called an ordered liberty, in order to have room to make our lives and to do so safely. But too much law can impair those same freedoms. James Madison talked about this. He warned us against this.

HH: Stand by, Justice, we’re going to come back to Madison in just a moment, because Madison figures prominently in the Justice’s new book. Stay with us.

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HH: During the break, the Justice and I had just gotten to James Madison. And I’ve got a lot of Madison questions for you, Justice. But what were you going to say about him when we went to break?

NG: Well, you’re right. The book isn’t about the founders particularly, or law. It’s for ordinary Americans, and it’s stories of ordinary Americans, and it’s dedicated to ordinary Americans. But I do think the central question at the book is one James Madison posed us over 200 years ago. And he said that some law is absolutely essential to our freedoms and to our aspirations for equality, right? Washington called that ordered liberty. You can’t pursue your life’s dream without some rules of the road. But Madison said that the thing to fear most is too much law, because what happens then? When law becomes a maze, and they don’t, it doesn’t just reflect norms that people know intuitively, but things that trap the unwary, and he said a couple of things happen. That harms everybody’s liberty, but it also has an impact on our aspirations for equality under law, because the monied and the connected few, he said, will be able to find their way through the maze a lot more easily than the average American. And that’s my question in this book. How are we in mediating this irony in law between these two ends of the spectrum? And I look, examine that…

HH: You kind of answer it in the book. We’re not doing very well at all. Now your term just completed with the Loper Bright decision and the decision curtailing the powers of the SEC to be both judge, jury, and prosecutor, these are big advances in the return of liberty to individual Americans. That’s why I kind of jokingly began with why aren’t you guys there every, you guys and gals, there every day striking down federal regulations and rules, because you’ve got to go faster, because the government is crushing people.

NG: Well, as somebody once said that the Constitution is safe when we’re on recess. I don’t know about that, but let’s talk about Chevron, if you’d like.

HH: Please.

NG: What did it mean? It meant that when a law was ambiguous, and judges would find almost any law ambiguous, that the federal government’s interpretation of it always prevailed. It put a thumb on the scales of justice between the government and the individual. And how did that impact people? I talk about in the book the example of Marty Hahne from Missouri. He’s a magician, backyard magician.

HH: No rabbit, yeah.

NG: Exactly. And what did the law say there? The law said that if you’re a zoo or a carnival, or other animal exhibitor, you have to have a federal license. Well, the agency interpreted that last phrase extraordinarily broadly to mean that even if you do children’s birthday shows and have a rabbit, you need to have a license. And Marty found that out the hard way. He’s doing a show one day, and somebody comes up to him and flashes a badge and says do you have a license for your rabbit? And he says do I need a license for my rabbit? I didn’t know that. It turns out he found out from the agent that if it had been an iguana, he wouldn’t have needed a license. And if he had intended to keep the rabbit for stew, no problem there, either. But because he wanted to exhibit the rabbit, he needed to have a license. He later learned after Hurricane Katrina when they changed the regulations again, they said everybody who exhibits rabbits has to have a disaster preparedness plan dealing with everything from chemical spills to hurricanes. Well, Marty’s in Missouri. And he says well, we don’t have hurricanes, but we do have tornados. And my disaster preparedness plan, he told an agent, is well, if there’s a tornado, I’ll get the family in the basement, and then the dog, and then the cat, and then the rabbit. And that just about, that also alarmed the agent, because well, she didn’t care about the dog or the cat. But the rabbit had to go first. And then he, of course, had to submit to home inspections. And during one of those, the agent comes in and sees the crate where he keeps the rabbit and carries it to the shows, and says well, how do you know which way to carry the rabbit? And he said well, I carry it by the handle on the top. And the agent says well, that’s no good. You have to have an arrow pointing this way up. And Marty says where do I get those? And the agent says I’ll send you some. And two weeks later, Hugh, you’ve got 200 ‘This Way Up’ stickers in the mail.

HH: Well, that is very, that one is almost benign compared to Geroge Norris.

NG: Right.

HH: I used to deal with the U.S. Fish and Wildlife Service on a regular basis, Justice. All of it is a taking. Someday, someone is going to get a successful taking decision against the agency for declaring an Endangered Species on their property and thereby limiting what they can do with it. But in the meantime, their agents arrested George Norris. This fellow fell in love with orchids. Sounds like he made something out of this life. And when you tell the story of what happened to him afterwards as though he’s in a coma, doesn’t it make you, well, stand by. We’re going to go to break, and we’re going to come back about George Norris, and then the Justice and I won’t be interrupted again. Don’t go anywhere, America. All of this will be on the podcast today. Go get the book, Over Ruled: The Human Toll of Too Much Law by Neil Gorsuch, because everyone really needs to know the precarious situation we are in with the administrative state. Stay tuned.

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HH: So I am back now with Justice Neil Gorsuch, he, of course, an associate justice of the United State Supreme Court. He’s got this brand-new book out, Over Ruled. When we went to break, we were talking about my least favorite agency in the federal government, the U.S. Fish and Wildlife Service, because I dealt with them for 30 years, Justice. They are completely beyond the reach of any kind of control. Political appointees don’t have any control over it. I know you write about the unitary executive. I know the most recent decision in Trump V. United States where you reaffirmed the unitary executive. But these bureaucracies, this treatment of Mr. Norris is not unusual. But it is unusual when a case gets to you. Does anyone have a consequence for an agent that abuses people like, well, Mr. Norris went to jail. I’m not sure we’d say he was abused. But his life was ruined because of the U.S. Fish and Wildlife Service.

NG: Yeah, he, he loved orchids, and he did import orchids apparently in violation of the federal law. He says of course he didn’t know that. And several agents came to his house, ransacked it completely. He was arrested, jailed, and spent time in solitary confinement, even, and he was an older man at the time. His wife said it left him completely broken. When he was in prison, some of his fellow inmates asked him orchids? What do you do – smoke them?

HH: (laughing)

NG: And you know, again, you just, whether it’s young people like Aaron Swartz or older individuals like George Norris who are trying to make their way in the world and not trying to do anyone harm, perhaps the make a mistake. Perhaps they need to be corrected. But do you throw the full power of the criminal law, which is our biggest artillery, at them? And if you do, how do you do it? Those are the kinds of questions I am encouraging people to consider in the book.

HH: You talk at length about the case that became the Archdiocese of Philadelphia V. Philadelphia, Pages 160-163. And of course, it was an interference with the Free Exercise Clause. Archbishop Chaput is a friend of mine, and we talked a lot about that case.

NG: From Denver!

HH: I knew about that case. And I knew you going to decide it that way. My question is, did Philadelphia pay any price for their obvious infringement on the free exercise of Catholic social services?

NG: Well, I hope they came to respect the religious liberties of those involved. You know, the framers put the freedom to exercise religion twice in the 1st Amendment – right to free speech, but they didn’t stop there. They didn’t think that was enough. They went on and added the Free Exercise Clause, because I think they understood that in their own time, the freedom of religion may be the canary in the coal mine. When liberties are being entrenched, the freedom to express yourself and your religious beliefs is often the first to go in history. History proves that. And the case you’re referring to involved the Archdiocese of Philadelphia that had been providing foster care to children for over 200 years. They were doing it hundreds of years before the state and the city got involved. And by the time that the case rolled around, you need to be certified by the city in order to participate and provide foster care parents. A newspaper reporter got wind that the Archdiocese didn’t always place, didn’t always accept as foster parents gay Americans. In fact, at least according to some, the Archdiocese had never had an application to be a foster parent by a gay parent that they knew of. And they said if they had ever gotten such an application or ever would receive such an application, they would refer them to another agency. They just didn’t want to do it themselves because of their religious beliefs. And for that, Philadelphia banned Catholic Social Services from participating in the foster care program, which meant that young children were going without loving homes. There was a crisis in Philadelphia at that time. They had announced literally a crisis in foster care, and they were trying desperately to recruit more foster care parents. And this was incredibly upsetting, as you can imagine, to foster care parents who had been providing loving homes. And I tell the story of Miss Fulton, for example, in the book, remarkable woman who had devoted her life to this. And all of a sudden, there were empty beds in loving homes because of this policy. And you’re right. The Court held unanimously that Philadelphia had violated the Free Exercise rights of those foster care parents and Catholic Social Services. And I hope that sends something of a message, Hugh.

HH: Well, the disagreement I have, Justice, with ‘I hope it sends a message’ is that the federal government and the state government, it’s grown so immense that it’s indifferent to messaging. I worked on the AQMD. Pete Wilson put me on that, a subsidiary of the Cal Air Resources Board, which is a subsidiary of the EPA. They’re indifferent to what they do. The U.S. Fish and Wildlife Service is indifferent to what they do, because there aren’t enough Bivens cases in the case of the federal agents who overreach, or 1983 actions in the case of state and local people who overreach. How do you call back this leviathan that has been unleashed? The administrative state has become a leviathan. So I just, I really don’t know what we do about this.

NG: Well, this is kind of the last chapter of the book. What can we do about it? And I think there’s quite a lot we can do about it. You know, most basically, we have to teach Americans about their government. When only a third of Americans can name the three branches of government, 60% of us would fail the citizenship test my wife took, we’ve got a problem. We need to start there. We need to learn how to talk to one another again as well, and realize that people with whom we disagree love this country every bit as much as we do. So those are the kind of basic building blocks, and there are a lot of people out there working on those things today. And I detail some of their initiatives in the book. But then, what can we do at our state and federal levels in our government? Well, take a look at what a lot of states are doing today with respect to too much law. Idaho, I think it was, said that we were abolishing the entire administrative code of the state except for those provisions the governor deems important enough that we should keep. Texas has a sunset provision that will eliminate entire agencies without further legislative action after a period of years. So there are, and that’s ongoing in a lot of different states across the ideological spectrum, Hugh. This is not a Republican or a Democrat issue. There are commissions in New Jersey and New York as well looking at antiquated laws. Okay, on the federal level, let me give you an example of something that I think should give us hope. My dear friend, Steve Breyer, before he became a justice, worked on the Senate Judiciary Committee with Ted Kennedy in the 1970s. And they looked around at airline regulation, and they said we’ve got this incredibly powerful agency called the Civil Aeronautics Board, and you could not, for many, many decades, start a new airline without that agency’s permission. You couldn’t even offer a new route without that agency’s permission. And you couldn’t change your fares without that agency’s permission. And Breyer looked at that, and he said that’s crazy. We need more competition. People need more choice. There should be more freedom to enter the skies. Remember when it was very expensive and only a few Americans flew? That’s not what America should be. So he held hearings, and it turned out that the only people in favor of keeping things as they were, were the agency and industry, because, of course, they benefited from the barriers to entry that some of those regulations created. Breyer was told by some very famous economists there’s no way you could get rid of this agency. It was the iron triangle of bureaucracy and legislation and regulation and industry. They’d never let it happen, that it was a captured entity. Well, he and Ted Kennedy and Jimmy Carter signed into law, and eliminated an entire federal agency. And now, Americans flock to the skies in numbers that were completely unthinkable in my lifetime and your lifetime. Now we’re all cramped together, and we have to pay more money for our bags, but at least we’re able to fly.

HH: You know, Justice Gorsuch, when I read that part about Justice Breyer, I made two notes. The first note was in the same year that the deregulation of the airlines occurred, Jimmy Carter and Ted Kennedy and others passed the Civil Service Reform Act of 1978, which created three federal agencies out of one. The Civil Service Commission became the Office of Personnel Management, which I ran briefly during the Reagan administration, was the general counsel of. It created the Merit Systems Protection Board, and it created the Federal Labor Relations Agency. So out of one came three. And none of them solved any problems. So I was just making a note. 1978 wasn’t a great year for the control of government whatsoever. But about Justice Breyer, I want to bring up he was kind enough to come on this show more than a dozen years ago when he wrote his book, Making Democracy Work. I wanted to get, and I know he’s your friend. But I would like you to sort of have a high-level response to what he told me. Originalism doesn’t work very well, he said. I think it’s pretty hard. I don’t think George Washington knew about the internet. I don’t think James Madison knew about television. And the world keeps changing. Did you ever have that conversation with Justice Breyer when you were colleagues? Or even to this day, I know he keeps chambers there.

NG: Oh, I’ve had that conversation on this couch behind me weekly for the last seven and a half years. And that’s a wonderfully fun conversation. I love Steve Breyer. I agree with him about almost nothing when it comes to legal interpretation. The fact of the matter is our framers gave us a written Constitution that we the people can change. And judges are not given a license to add to it or detract from it. Our charge is to interpret and apply that law in the cases that come before us. And I think it’s very dangerous when judges stray from that role. Now if I had to elect or appoint, I guess, a benign dictator for the country, it might well be Steve Breyer. He’s a lovely man and a very wise one. But nobody gave us a commission to rule the country. They gave us a commission to decided cases and controversies consistent with the Constitution and laws of the United States.

HH: You know, what I replied to him a dozen years, Justice Gorsuch, was they might not have known about the internet, but they knew about liberty. And I quoted to him Farmer Smith at the Massachusetts ratification convention, and I’m going to repeat it for the benefit of the audience. On January 25th, 1788, Mr. Smith rose and addressed the Massachusetts ratification convention, and he said, “Mr. President, I am a plain man. I get my living by the plough. I’m not used to speaking in public, but I beg your leave to say a few words to my brother plough joggers in the house.” And he referred to Shays Rebellion. And he said, “When I saw this Constitution, I found it was a cure for these disorders. It was just such a thing as wanted. I got a copy of it and read it over and over. I had been a member of the convention to form our state constitution and learned something of the checks and balances of power. I found them all there. I did not go to a lawyer to ask his opinion. We have no lawyers in our town, and we do well enough without it. I form my opinions, and we are pleased with our Constitution.” Justice Gorsuch, what do you think Farmer Smith would say about our code of federal regulations and our, just our general federal code nowadays?

NG: Oh, I think you and I can both imagine the answer to that. But I think you’re absolutely right that what Farmer Smith did know was that you have a right to speak freely, for example. And does it matter whether it’s in a newspaper in 1789, or on the internet today? You have a right to speak free from governmental censorship. And that doesn’t change. That principle doesn’t change. The facts in the world may change, but the law, the written law, the Constitutional law doesn’t change unless and until the people amend the document.

HH: Justice, I know we’re coming close to the end of our time, and I’ve saved a couple of the hardest questions for you. I know the rules. We do not discuss cases that may come before the Court. And rarely do we get into deliberations within the Court. But I am curious when you see the Jack Smith is once again in front of Colorado authorities being sued once again, and he prevailed in Masterpiece Cakeshop, but it was a narrow decision. Since them, we’ve had Creative 303. I follow these cases closely. Do you sigh? Do you shrug your shoulders? Is there nothing the Court can do? It’s like the, everyone who got a 404 permit after Rapanos, nothing changed? You guys told them to stop doing what they did, and the Army Corps of Engineers issued guidance doing what they’ve done forever. Do you think the Court is even capable of getting the federal regulatory system to change?

NG: Hugh, this is part of why I wrote the book, because nine old people in Washington can’t affect much change. That’s not our job. You don’t want us to do that. What you want us to do is decide the cases and controversies that come to us. Nobody appointed us philosopher-kings. We the people are the first three words of our Constitution. And they are profound. And the Declaration has three fundamental and remarkable promises in it, ideas in it. One, that we have inalienable rights. They don’t come from government. Second, that we’re all created equal. And third, that the just powers of government derive from the consent of the governed, that we are sovereign. And the only answers to our ailments today are going to come from the same people, like Farmer Smith that you mentioned earlier, who helped found this country. And the same courage to stand up, as so many of the people in my book did, and to whom the book is dedicated, whether it’s Marty, when it’s Aaron Swartz, whether it’s George Norris, whether it’s John and Sandra Yates, another remarkable story, these people stood up for what they believed the American dream was about, for those promises in the Declaration. And if we have any hope, and I believe we do, it rests with them.

HH: Well, okay, I’m going to close on a bad note. It took, finally, the SEC case got to the Court. And finally, the Chief Justice wrote the majority opinion, 28 pages. You wrote a concurrence, 27 pages. The second paragraph of our concurrence reads, “The 7th Amendment jury trial right does not work alone. It operates together with Article III and the due process of the 5th Amendment to limit how the government my go about depriving an individual of life, liberty and property.” Bravo, Justice. The 7th Amendment guarantees a right to trial by jury. Article III entitles individuals to an independent judge who preside over that trial. And due process promises that any trial will be held in accord with a time-honored principle. Taken together, all three provisions vindicate the Constitution’s promise of a fair trial and a fair tribunal. Now Justice, I think the Constitution is very strong. I just don’t think it’s applied very often, because the SEC having the authority it had, it was ridiculous, and it was ridiculous for 40 years.

NG: Well, look at what we did in that case, Hugh. So what we’re talking about here is can a man be tried and his property taken by what are called administrative law judges. They used to be called hearing officers until not but a minute ago, it seems. And these people, it turns out, are employees of the same agency that is bringing the charges against you. So can the agency be both the prosecutor and the judge when it seeks to take your liberty or your property, and do so without a jury and under procedures that are not exactly the same as you get in court? And the Court held no. The Court held that the 7th Amendment, and I emphasized, as you point out, Article III and the Due Process Clause, teach the same thing. It means that you get a fair and neutral judge to decide your case, and a jury of your peers to pass on the facts, if you like.

HH: So my last question, Justice. When you get together in the conference room, and the Chief is an old friend of mine, so I’ve been in your conference room. We were together in the White House years ago. Is there a sense of urgency that you’ve got to maybe take more cases, write fewer opinions, write them more quickly, and get the decisions out to check the federal government? Is there any sense that the American people are losing liberty?

NG: Hugh, what there’s an urgency for in every good judge is to take every single case that comes before him or her seriously. What may seem incidental to you is terribly important to the affected people on both sides of that V. And an old, wise judge once told me that your job, Neil, is to make half the people unhappy 100% of the time, because one side’s going to win, and one side’s going to lose. And you have to take each one of those decisions seriously. So Hugh, we give fair, and I believe all of my colleagues do this assiduously, they’re to a person excellent public servants, take the cases that, all the cases that come before us, seriously.

HH: I want to tell everyone, they’re going to find Gordon Liu quoted in Justice Gorsuch’s new book. They’re going to find a lot of men and women of the left quoted in Justice Gorsuch’s new book. It’s not an ideological book. It is a plaintive cry for people to wake up to what has happened. Justice Gorsuch, congratulations on Over Ruled. I hope you keep coming back, and I hope you will take up my invitation to Chapman, because I would like to talk about the docket sometime, and maybe getting you guys to get the machete out a little bit more when it comes to the CFR. Thank you, Justice, for joining me.

NG: Thank you so much, Hugh.

End of interview.