Morning Glory: Justice Gorsuch takes his case public

It is unusual for the fireman to actually pull the fire alarm, but that is exactly what Supreme Court Justice Neil Gorsuch has done in his new book, co-authored with Janie Nitze: ‘Over Ruled: The Human Toll of Too Much Law.’

Readers familiar with the excesses of the ‘Administrative State’ will not be particularly surprised by the horror stories emerging from the regulatory behemoth that are the executive branches of federal and state government. The outline of every single story retold by Gorsuch and Nitze is familiar: Government crushing citizens who happen to cross their paths. 

It might by an Amish family trying to maintain its way of life in rural Minnesota, a famous race car driver (Bobby Unser) who barely survived a wilderness ride on a snowmobile only to face prosecution and conviction in a ludicrous proceeding, or a magician who discovered that his act’s rabbit needed a license from the Department of Agriculture. They all get their stories told in succinct and compelling fashion by Justice Gorsuch and Ms. Nitze, and there is no doubt satisfaction in that telling for every victim of bureaucratic excess. But did any of them receive justice, or even an imperfect remedy?

The answer is, sadly, no. For all the tales of regular overreach and abuse of process that Gorsuch recounts, the list of rebuked bureaucrats is…well, non-existent. Because while federal and state agencies can be told to stop violating the Constitution, or ordered to stop exceeding their authority, or simply shamed for the absurdity of their endless rules, there is precious little accountability for individual bureaucrats drunk on power. 

Which is why I jested with Justice Gorsuch on Monday’s program that he and his colleagues really needed to get back to work. (The Supreme Court traditionally wraps up its term at the end of June or very early July and then reconvenes on the first Monday in October.) The justice in good humor replied that he and his colleagues work pretty hard as it is, and he’s right. But measured against the vastness of the federal, state and local governments, the Supreme Court could hear and decide cases on behalf of aggrieved citizens 24/7/365 and it still would not make a dent in the power of unelected and unaccountable employees of the hundreds of federal, state and local agencies to make life miserable for citizens of the Republic. 

I pointed out to the justice that 2.8 million people are employed as civilians by the feds and more than 19 million more people are employed by the state and local governments. (These numbers do not include the uniformed military.) The chances of an ordinary citizen getting a fair and just result in expeditious fashion from any corner of this almost endless federal, state and local governments is simply next to zero. It is hard enough to get a phone call returned much less to litigate to victory against the government. 

Even when an eventual adjudication of an aggrieved litigant’s case results in a decisive win —as when the Archdiocese of Philadelphia triumphed over the ideological extremists of the City of Philadelphia’s social services— it does not really repair the damage done. In this case the city’s bureaucrats wanted to bar the Diocese’s Catholic Social Services (‘CSS’) foster program from the city’s sprawling network of providers of foster care services despite the Archdiocese’s long record of exemplary service to children in need of foster care, a record that dates to 1917.

The City had barred CSS in 2018 because, consistent with the theology of the Roman Catholic Church, CSS would not accept as potential foster parents whom CSS would ‘vet’ as qualified to care for foster kids either unmarried couples or gay and lesbians individuals or couples. Just before being barred, CSS was providing homes for more than 120 children. ‘How did it work out in the end?’ Gorsuch and Nitze ask. ‘In the Spring of 2021 the Supreme Court unanimously held that the city’s refusal to renew its contract with CSS on the basis of the group’s religious ideas violated the First Amendment.’

‘But consider what it took,’ the authors add. ‘The group had to endure years of litigation. It had to persist too, through losses both in the trial court and on appeal. In the meantime, children in need were left unserved and available beds in loving homes sat empty.’

That’s one story with a semi-happy ending but the book is full of the tragedies wrecked upon individuals and organizations by bureaucrats drunk on power and zealous for evidence that their jobs must exist. The ‘Administrative State’ never willingly relinquishes power, never ever declares any of its tentacles to be superfluous. 

The scope of the problem is laid out in ‘Over Ruled,’ but as Justice Gorsuch noted to me on air, any comprehensive solution to the problem of too many laws, regulations and penalties must come from the Congress or state legislatures. Justice Gorsuch is at least half correct. It is not for the Court to legislate, but it and the lower federal courts could seriously consider reviving the long dead ‘non-delegation’ doctrine as well as putting real teeth into the punishment of agencies and employees of the federal government who are found to have abused their authority in those federal cases brought by heroic plaintiff. 

The ‘Administrative State’ is not a ‘deep state.’ It doesn’t hide. It’s easy enough to see their work and God help you if you cross their most aggressive rule-enforcers. But curbing the excesses of untouchable bureaucrats should not be as hard as it is. The cases should not take so long to move towards resolution and redress. Courts need to move with urgency to rescue citizens from bureaucrats gone wild. And the president and governors deserve the authority they need over their ‘executive branches’—including the robust authority to dismiss the offenders of citizens’ rights.

Hugh Hewitt is host of ‘The Hugh Hewitt Show,’ heard weekday mornings 6am to 9am ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh wakes up America on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990.  Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcast, and this column previews the lead story that will drive his radio/ TV show today.