Swallowed by a Legal Monster
Supreme Court justice Neil Gorsuch
(Jay Godwin / Wikimedia Commons)
By Chris Nunn
This article appears in the Winter 2025 issue of the Coolidge Review. Request a free copy of a future print issue.
Over Ruled: The Human Toll of Too Much Law
by Neil Gorsuch and Janie Nitze (Harper, 2024)
Inspiration comes in many forms. Sometimes you witness greatness and wish to emulate it. Sometimes you experience the desperation of others and wish to alleviate it. In Over Ruled, Supreme Court justice Neil Gorsuch and coauthor Janie Nitze inspire by telling stories of the survivors of an underappreciated evil: the regulatory state.
As the authors observe, “some law is essential to our democracy and liberties and the equal treatment of all people.” But problems arise from “too much law,” which can “undermine all of those things and even respect for law itself.”
The United States now has too much law. The Federal Register grows by about seventy thousand pages each year. It’s virtually impossible to stay abreast of all these rules, many of which carry the force of law.
Meanwhile, Congress keeps coming up with more criminal provisions, “adding an average of 56 new federal crimes to the books every year,” the authors note. Gorsuch and Nitze cite one scholar’s estimate that “70 percent of adult Americans today have committed an imprisonable offense—many, maybe most, without even knowing it.”
These days, avoiding prosecution (or persecution) often depends more on the authority’s desire to find an offense than on the citizen’s ability to lead a law-abiding life.
TARGETING MONKS, MAGICIANS, AND MORE
Working in a highly regulated industry—banking—I have navigated the minefield of ever-expanding rules and decrees. I have dealt with many federal and state agencies, including the Federal Deposit Insurance Corporation, the Federal Reserve, the Federal Election Commission, the Department of Justice, the Internal Revenue Service, the Department of Labor, and the Tennessee Department of Financial Institutions, to name just a few. These interactions have ranged from pleasant conversations to threatened litigation. When litigation came into play, the matter usually involved differing interpretations of some law, rule, or opinion, or perhaps a new interpretation of one of those edicts.
But as Over Ruled shows, financial institutions are far from the only ones to suffer from excessive regulation. Gorsuch and Nitze illustrate the far-reaching effects of too much law through stories of real people—fishermen, foster parents, monks, magicians, and many others. The accounts verge on the absurd:
Armed police officers raid a beauty shop to make arrests for “hair braiding without a license.”
Undercover agents surveil six-toed cats at an Ernest Hemingway museum.
Police arrest a ninety-year-old man who has the nerve to give away meals to the homeless. The arrestee later recalls, “One of the police officers said, ‘Drop that plate right now,’ as if I were carrying a weapon.”
The stories would be amusing if they were not so terrifying.
Those affected often end up financially wrecked, in prison, or both. Gorsuch and Nitze recount the harrowing tale of John Yates, a commercial fisherman who was arrested and charged with violating, of all things, the Sarbanes-Oxley Act—a federal law passed after the Enron scandal to prevent financial fraud. Who knew that alleged destruction of financial records could include fish?
Yates’s fight with the federal government lasted eight years. The U.S. Supreme Court finally vindicated him, but by that point the damage had been done. He had spent time in prison, lost his career and his family’s main source of income, and fought for years in court.
Two years into the ordeal, Yates’s wife, Sandra, issued this plea to the government: “We are meager people and don’t want much, but fair and professional treatment should be mandatory for all.”
The question of fairness features prominently in Over Ruled. Gorsuch and Nitze ask, “What does it mean for our nation’s promise of equal treatment when our laws become so numerous and so complex than only an affluent or connected few can navigate their way?”
Indeed, for all the discussion of equity in America, how often do you hear about the regulatory state’s disproportionate impact on those who lack the means to make their way through the system? The explosion of laws, regulations, and licensing requirements has led to a spike in the demand for legal services. As a result, Gorsuch and Nitze say, “Most Americans today cannot afford even desperately needed legal advice.”
Having too much law produces disparate impacts even when Americans don’t endure overzealous prosecution. The emergency edicts and ever-changing regulations that accompanied the COVID-19 pandemic sometimes “privileged the few over the many,” Gorsuch and Nitze say.
Well-heeled and politically connected businesses often fared better. Nevada, for example, permitted casinos to welcome thousands of gamblers, but it capped services at houses of worship at fifty people, no matter the buildings’ capacities. Other states drew seemingly arbitrary distinctions between “essential” and “nonessential” businesses. In New York, so-called essential businesses included “liquor stores, hardware stores, bike stores, acupuncturists, and more,” Gorsuch and Nitze report.
Early in the pandemic, Professor James Kwak of the University of Connecticut reflected on the impact of the lockdowns. He predicted that the pandemic would “reinforce and exacerbate what were already the two key economic trends of our lifetime: consolidation and inequality.”
Professor Kwak’s analysis proved prescient. The first year of the pandemic brought an extra 200,000 business closures. Two-thirds of those involved small businesses, and minority-owned businesses suffered most of all.
THE EROSION OF TRUST
What explains the exponential increase in laws and regulations? It’s a question that admits no simple answers, as the authors acknowledge. But one intriguing factor they cite is the decline of “trust in individual judgment, civic institutions, and social norms.” Now more than ever, Gorsuch and Nitze argue, “we turn to the law to address any problem we perceive” and “are willing to criminalize conduct with which we disagree.”
The erosion of trust and the turn to the law matter because democracy depends on more than “the freedom to think and speak freely,” the authors write. Democracy “also depends on trusting that those with whom we disagree are not ‘miscreants’; it depends on listening to and engaging with those who have different views.”
INCORRIGIBLE OPTIMIST
By showing how the law “swallow[s] up ordinary people,” Over Ruled tells a bleak story. Why, then, do I call it an inspirational book?
For two reasons. First, by telling the stories of people who resisted—and sometimes defeated—the regulatory state, the book reminds us that we need not accept government overreach as inevitable.
Second, all hope is not lost. In a 1922 speech, Calvin Coolidge anticipated the problem Gorsuch and Nitze identify, saying, “There is danger of disappointment and disaster unless there be a wider comprehension of the limitations of the law.”
But Coolidge concluded on a more encouraging note, saying, “The limit of what can be done by the law is soon reached, but the limit of what can be done by an aroused and vigorous citizenship has never been exhausted.”
Similarly, in the epilogue to Over Ruled, Justice Gorsuch acknowledges that he has “real concerns” but concludes: “I confess I remain an incorrigible optimist. America has overcome daunting odds time and time again.”
On this point, as on many others, Justice Gorsuch and I agree.
Chris Nunn, a Coolidge Foundation trustee, serves as chief financial officer at Security Bancorp of Tennessee.
This article appears in the Winter 2025 issue of the Coolidge Review. Request a free copy of a future print issue.