Neil Gorsuch

- A Supreme Court justice says we're overruled.

This week on "Firing Line".

Can you say, Justice Gorsuch, that you have not inadvertently and unwittingly yourself committed a felony?

- Can I plead the Fifth?

(Margaret laughs) - You would know.

- [Margaret] Nominated by former president Donald Trump in 2017... - So help me God.

- So help me God.

- Congratulations.

(crowd applauding) - [Margaret] Associate Justice Neil Gorsuch is part of the 6-3 conservative majority on the Supreme Court that has delivered a series of landmark decisions.

- [News Reporter] The Supreme Court has now overturned Roe v. Wade.

- [News Reporter] The US Supreme Court today dealt a major blow to affirmative action in higher education.

- [News Reporter] A landmark decision in American history as it relates to presidential power.

- In late June, it overturned a decades-long precedent known as the Chevron doctrine that had required courts to defer to the regulatory agency's interpretation of federal legislation.

How do you know that this won't lead to a new wave of judicial activism?

- It didn't happen for 40 years before Chevron.

I don't know why it would now.

- [Margaret] In a rare interview at the Supreme Court, we discussed Justice's Gorsuch's new book laying out his stance against over-regulation.

- There are so many regulations now carrying criminal consequences that nobody knows how many there are.

- [Margaret] We agreed to focus on his book and avoid other court decisions or political matters.

But the conversation took place against a backdrop of record-low public confidence in the Court and calls from Democrats for reforms, including term limits.

- Margaret, as you may know, this has been the subject of some recent debate.

- What does Justice Neil Gorsuch say now?

- [Announcer] "Firing Line" with Margaret Hoover is made possible in part by Robert Granieri, Vanessa and Henry Cornell, The Fairweather Foundation, and by the following.

Corporate funding is provided by Stephens Inc. - Justice Gorsuch, welcome back to "Firing Line".

- It's good to see you, Margaret.

- Your new book, "Over Ruled", asserts that we have, quote, "Too much law in America."

The book is about individual stories.

Alfonso De Niz Robles was an undocumented immigrant who was married to a U.S. citizen, had built a life and a family in the United States, and was confronted with a confounding, contradictory set of federal statutes when he applied for citizenship to the United States.

How does his case illustrate the problem of too much law?

- Yes.

James Madison knew two things when he wrote the Constitution.

First, he knew that we needed some law in order to keep us free.

You can't be free if you're not safe.

On the other hand, he knew that too much law can actually wind up impairing your liberties too.

And he was looking for a golden mean when he drafted our Constitution.

When I sat through Mr. De Niz Robles' case, I began wondering how we're doing on that score.

Mr. De Niz Robles faced two contradictory statutes.

One said he could apply for citizenship immediately.

Another said he'd have to leave the country and wait 10 years before applying.

What was he supposed to do?

The 10th Circuit in an earlier decision had held, well, looking at these two statutes, we think the first one controls, so people in his shoes can go ahead and apply.

It took the government six years to respond to his application And then they said, we disagree with the 10th Circuit's resolution of these two statutes, and we think the second one actually controls.

And so, Mr. De Niz Robles, you have to start all over and leave the country for 10 years and then apply.

It said it could do that because of a case called Chevron... - [Margaret] Mm-hm.

- And that courts had to defer to the agency's reading of the law.

And that got me thinking about whether ordinary people are sometimes just caught up unintentionally, intending nobody any harm, trying to do the best they can to follow the law, and still get mangled up in our system of justice sometimes.

And so it's stories like his that made me think about this problem and want to write this book.

- You're referring to Chevron versus Natural Resources Defense Council, a landmark case decided by the Supreme Court in 1984 that involved the Reagan administration's EPA and the Clean Air Act.

When you refer to the Chevron doctrine, explain for the layman what that means.

- Well, it's simply the idea that, when we're interpreting a statute, what the law means, are you going to look at both sides' arguments evenly, or, if the statue might be said to be ambiguous, do you give weight to the government, so the government almost always wins?

- And the Chevron doctrine requires federal judges to adhere to agency... - Even when they think it's wrong.

Yes, that's exactly right.

- You write about the Hemingway House... - [Neil] Yes.

- And Museum, which is in Key West.

You write about its battle with the federal government over the descendants of Hemingway's six-toed cats.

You raise the case to illustrate your concerns about the application of Chevron and Chevron doctrine.

What did the Chevron doctrine have to do with Hemingway's cats?

- Okay, so Chevron, we saw a moment ago, thwacked Mr. De Niz Robles.

It also thwacked the Hemingway House, Hemingway's old house in Key West.

He was given by a ship captain a six-toed cat.

At any rate, this cat was apparently prolific.

There are now bunches of them running around the Hemingway House.

They take loving good care of them.

People love the cats.

But there's a law that Congress passed that said zoos, circuses and other animal exhibitors have to have a federal license.

Okay.

An agency interpreted that statute, through regulation, to apply not just to large-scale animal exhibitors, but pretty much anyone who has cats.

So what happened in the Hemingway House?

Some folks from the U.S. Department of Agriculture would come down and say, "You need to have a license, and you're not taking proper care of these cats.

They're getting over the wall."

The museum brought a lawsuit, trying to say, "We're not within the statute.

These regulations don't make sense of the statute.

We're not animal exhibitors.

Yes, we care for some cats."

The 11th Circuit said, "That's a nice theory you have there.

You might be right.

We feel sorry for you.

But that's what the agency has said, and it's reasonable, and so we're going to defer to the agency."

And it's another example of where Chevron just was putting a thumb on the scale of justice in favor of the government systematically in the interpretation of our laws.

- Without Chevron, how might that case have resolved itself?

- A judge would have decided what the law meant, fair and square.

- Today the Supreme Court's conservative majority upended the way our federal government functions by overturning the 40-year-old landmark decision, Chevron v. NRDC - Now that Chevron has been overturned, in cases that require specific scientific and technical expertise to interpret statute, how is a federal judge without that expertise to be guided in interpreting the law?

- That's a very important question, and the answer is, just like they always have been.

So historically, the way judges did it before Chevron, before 1984, is to take both parties' submissions with due respect for the government's views and resolve the case.

And if they have the better argument, they win.

- There's a concern amongst conservatives that there has been in our past a propensity to regulate from the bench.

How do you know that this won't lead to a new wave of judicial activism?

- It didn't happen for 40 years before Chevron.

I don't know why it would now.

- Was Chevron not a response to judicial activism in the first place?

- Well, that's an interesting question, right?

My predecessor, Justice Scalia, was in favor of Chevron for most of his career.

He came to see the problems with it toward the end of his career.

And I think the reason was just what you're talking about, is judges shouldn't be embellishing statutes.

- Right.

- And that was a danger he saw in his time.

Well, the answer to that problem is to make judges strictly focused on the law.

His diagnosis was absolutely right, and so is that cure, but Chevron isn't part of that, and he came to see that himself.

- Many of the people you write about in the book, they're working-class Americans.

- Yeah.

- How does the sheer volume and complexity of legislation and the rulemaking process present a burden on average Americans?

- Well, let's do the numbers.

In just my lifetime, federal law has grown massively.

We've seen maybe a doubling in the number of federal criminal offenses on the books.

There are so many regulations now carrying criminal consequences that nobody knows how many there are.

There are at least 300,000.

And then, if you want a story, well, maybe I'll tell you of John and Sandra Yates.

Is that okay?

It's the story I start the book with, and it's a case that made it to this court.

John and Sandra Yates were high school sweethearts.

They moved down to Florida to follow John's passion.

He wanted to be a fisherman.

He worked his way up from deckhand to becoming captain of his own crew.

And he's out one day.

And an agent comes up and says, "I would like to measure your fish.

I'm not sure they're all the right size."

They had to be at least 20 inches.

He spends the whole day measuring thousands of pounds of red grouper and decides 72 are undersized.

He says, "Put them in a crate, and I'll deal with you when you get back to dock."

A few days later, he does.

He measures them again, but this time only 69 are undersized.

Now, John's expecting a citation or something, and that that's that's the way it goes, that'll be fine.

But he hears nothing from the government for three years, until one day agents surround his house.

They charge him with violating the Sarbanes-Oxley Act, which was adopted after Enron, financial accounting scandal.

Now, the statute says if you destroy intentionally accounting records, documents, things like that, or other tangible objects, you're guilty.

The government's theory in the case apparently was that he intentionally threw overboard 72 red grouper, tangible objects, and replaced them with 69 still undersized fish.

Now, John thought that was about the silliest thing he ever heard, but he was found guilty by a jury, appealed and lost, spent Christmas in jail.

And he was ready to give up, but Sandra, his wife, said, "No.

You gotta appeal this, because this is just wrong."

Brought it all the way to the Supreme Court of the United States and won five to five.

Sandra was angry that she didn't get more votes.

- Yeah.

(chuckles) - And what does this teach us?

It teaches us, even when you win sometimes, even when you win, you lose.

Oh, by that time, he had lost his boat, his livelihood, his home.

So those kinds of stories, cases I saw that have to do with the meaning of a statute, but what do they really mean for people's lives?

That's the question the book's about.

- A Harvard Professor has estimated, you cite this in your book, that the average American commits three felonies a day.

- And he adds, "If you think I'm exaggerating, I'm not."

- Can you then say, under these circumstances, Justice Gorsuch, that you have not inadvertently and unwittingly yourself committed a felony?

(Neil laughs) - Can I plead the Fifth?

(Margaret laughs) - You would know.

You observe that this explosion of regulatory activity is a relatively recent phenomenon.

It has been embraced by both parties, you write, and it has accelerated in recent decades.

If increasing regulation isn't being driven by one particular party or political ideology, what is fueling it?

- I think that's a really interesting question, and I think the premise is exactly right.

This isn't a partisan issue.

I'm not a social scientist or a psychologist, but I think some part of it, Margaret, has to do with trust.

Right?

Do I trust my local community to solve problems and work together?

Do I trust my fellow American?

And when you lose those connections to family, community, friends and trust gives way to distrust, that's when I think you demand more law.

- You recognize that many of the rules are well-intentioned, many laws are well-intentioned.

How do you respond to a critique that the alternative to all these laws is unsafe food, unsafe workplaces, excessive pollution, a weakened social safety net for the disadvantaged?

- Nobody wants any of those things, right?

Nobody.

Again, we need some laws, but can I tell you another story?

I think it just answers your question better than I can put it in words myself.

So Butte, Montana was, in the 1800s, one of the richest places on the planet because they discovered copper there.

Of course, in the 1980s, by that time the plant closed down, and they discovered that all those years of smelting copper had left arsenic in a huge expanse of Montana, 300 square miles.

EPA took it over and did a great job with the Superfund cleanup for 30 years.

But they set the arsenic levels that were gonna be acceptable to remain in the soil at 250 parts per million in residential yards.

Somebody in Washington thought, as the EPA put it, that that was an acceptable cancer risk.

The people of Butte wanted a better cleanup job.

The company resisted and said, of course, EPA said 250 is okay.

EPA came in on the company's side and said no further cleanup is required or permitted without our permission.

So people in Butte couldn't even clean up their own backyards.

Now, we all want clean water or clean land, all of the things you talked about, but is there room maybe, maybe, just maybe, for people in Butte, Montana to control some of their fate on these things?

Don't they have a role to play too?

- In "Over Ruled" you quote former senator and appellate Judge James Buckley.

- One of my heroes.

- James Buckley was on the original "Firing Line" with his brother William F. Buckley, Jr. in 1971, and he is discussing this exact theme.

Take a look.

- I believe that one of the problems we've had in this country is that, to the extent that we start transferring responsibilities to bureaucrats, who are not responsive to anybody, to the extent that we transfer the seat of bureaucracy from the city and state to Washington, to that extent, the citizen starts getting a feeling of helplessness, a feeling that he really has no control over his own destiny, so what's the use?

I think that one way to start doing that is to start returning power from Washington to local areas, start dismantling red tape.

- So if individuals like Buckley were diagnosing this problem 50 years ago, why has so little progress been made to address it?

- First, can I say that James Buckley was one of my judicial heroes and a great friend.

I can't believe he's talking about it in 1971 and here we are today.

And far from addressing the problem in the way he would like to have done, one might say it's only spiraled even further.

Outlays to states from the federal government, grants, have skyrocketed.

About a third of all state budgets now come from the federal government.

- But with strings attached.

- With strings attached.

And that's part of what I was getting out with the Butte story.

- Yeah.

- How much... Of course we need experts.

Of course we need national solutions.

But don't we also need state and local involvement to feel like you have power in your democracy?

We the people are supposed to be sovereign in this country.

Count me in with Jim Buckley.

- In your book, you quote The Federalist Papers, and Alexander Hamilton wrote about the value of the judiciary that is independent and commands, quote, "The esteem and applause of all the virtuous and disinterested."

What responsibility does the court have to win the public's confidence?

- Well, the court is a funny thing in a democracy, right?

All of our other institutions are elected, but the courts are not, right?

And so an independent judiciary was always an important brake on the other two branches as the framers saw it.

Before your life, liberty or property can be taken, you are guaranteed due process of law, an independent judge and a jury of your peers.

- So... - I'm not sure that answers your question totally.

- So the question is, what responsibility does the court have to win the public's confidence?

- I think do that job.

Do that job.

Be independent.

The moment we give that up, we lose a very precious thing, right?

- So independence will mean public confidence?

- Follow the Constitution and the laws of the United States in what you do, faithfully as you can.

- So following the Constitution is enough to garner the public confidence?

- I think that's all a judge can do, right?

I cannot step outside of this role and start legislating from the bench, telling people how to live their lives beyond what the Constitution mandates.

Anything I do beyond being a judge and trying to be a neutral and fair, faithful servant of the Constitution laws, I'm doing more harm than help, I think.

- Alexander Hamilton actually anticipated the prospect of term limits for judges in The Federalist Papers.

And he wrote, "Periodical appointments, however regulated or by whomsoever made, would in some way or another be fatal to their necessary independence."

Do you agree with Hamilton?

- Margaret, as you may know, this has been the subject of some recent debate, and I'm not going to touch something that's in the political sphere.

- At the outset of your book, "Over Ruled", you acknowledge that there is, quote, "Not much that even the Supreme Court or a justice of the Supreme Court can do about the excesses of laws."

So where do the solutions lie?

- We the people.

The American people need to recognize that they remain the sovereign in this country, right?

- You say "we the people" are the answer, but we the people act through the Congress, the legislature.

Do you think Congress will take the note?

- You know, I am optimistic.

There are reasons to be optimistic in both parties, right?

President Trump, during his administration, had some rules about if you adopt a new regulation, you have to take one away.

President Obama famously, during one of the State of the Unions, sought to address overregulation, saying, "Salmon, I understand the Interior Department regulates them when they're in freshwater, the Commerce Department when they're in saltwater, and it gets even more complicated when they get smoked."

So I think both parties have seen this as an issue.

- Recognize that this is a problem.

- And let me give you a great example.

My dear friend and former colleague, Steve Breyer.

Before he became a justice, he worked with Ted Kennedy in the Senate, and they wanted to do something about airlines.

Back in the day, there was an agency called the Civil Aeronautics Board, and you could not start a new airline without their permission.

You could not add a route to your airline without their permission.

You could not change your fares without their permission.

And Steve Bryer thought that that was suppressing competition, and he thought maybe we should get rid of the Civil Aeronautics Board, an entire federal agency.

And everybody said that was impossible.

How can you do that?

The quote we just saw from Jim Buckley, it's almost impossible to get rid of these bureaucracies.

Well, you know what?

Steve Breyer, Ted Kennedy and Jimmy Carter did it.

They eliminated an entire federal agency.

And what happened?

We had abundant price competition, new airlines.

Now everybody complains to Steve, he likes to say, everybody complains to him that, "Yeah, all right, I can fly now.

People didn't used to be able to do that.

But the seats are sure a lot more cramped, and I have to pay $25 for my bag, or 50 now."

But the fact of the matter is, it's not perfect, not perfect, but change can happen.

And when I was a child, people by and large weren't able to fly, and today, most Americans have been to the skies.

- You call yourself an incorrigible optimist.

- I am.

- [Margaret] What gives you hope?

- Well, it's the stories in these books, right?

As we've talked about, the individual Americans, everyday Americans who fought and won for their freedoms in little ways, in little ways every day.

And that's always been part of the American spirit, right?

- Do you think this Gen X generation has that same spirit?

- Listen, there are ample reasons for concern, right.

When only six states teach civics, a full-year civics class in high school, that worries me, right?

When a third of millennials, or whatever it is, say they don't think it's important to live in a democracy.

That worries me.

I'm not pollyanna-ish, but I just see so many groups and individuals working to try and address these problems, right?

And you asked me about the younger generation.

Yes, I see in my law clerks, in the kids I teach during the summertime, the same love and compassion for this country.

- Are there any lessons you can share with us from your own experience here on the court?

- Yeah, we deal with... You give us the 70 hardest cases in the whole judicial system every year.

And you American people file a lot of lawsuits.

You file 50 million lawsuits a year.

- We're a litigious country, aren't we?

- Yeah, 30 or 40 million of us?

50 million lawsuits?

One out of every seven of us is filing a lawsuit every year?

I mean, that's a lot.

That doesn't count parking tickets and speeding tickets.

Okay?

You give us the 70 hardest cases a year, 60, 70 cases, ones where lower courts have disagreed, right?

Tough cases.

There are nine of us.

Can you get nine people to agree on where to go to lunch?

Hard.

These nine people have been appointed by five different presidents over 30 different years.

They have different views on how to interpret the Constitution and statutes.

Not political disagreements but interpretive, methodological disagreements, lawyerly disagreements.

Yet we're able to reach unanimous judgment in our cases about 40% of the time.

It was even higher this last term.

And I read somewhere this term that I agreed with, in ideologically divided cases, whatever that means, I agreed with Justice Sotomayor, Justice Kagan, and Justice Jackson about 45% of the time.

That's the court I know.

- The court is intended, and was intended by the founders, to be insulated.

Do you feel that the court and you and your colleagues are insulated from the hyper-polarization that so many of the electorate experience?

- Well, I do worry about the safety of my colleagues after what happened to one of them.

- And what's just happened to a former president.

- And what just happened to a former president.

And I do worry about that.

But internally, the court functions very well, and I'm very happy about that.

But, yes, I worry about the way we talk to one another.

I worry about the way we treat one another.

And democracy can't work without disagreement.

That's the beauty.

The whole idea is we take the best ideas and we distill them down through everybody.

And we have to disagree for it to work.

You can't do that when you hate the person who disagrees with you.

You have to remember that the person who disagrees with you loves this country every bit as much as you do.

Steve Breyer and I could not disagree more on how to interpret the Constitution of the United States.

I love Steve Breyer.

I think he likes me too.

- Justice Gorsuch, for your time and your service to this country, thank you for joining me on "Firing Line".

- Thank you very much, Margaret.

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