Neil Gorsuch’s New Book Is an Embarrassment

The Supreme Court began its new term last week at a perilous moment for the institution. Public approval of the court remains at all-time lows under the 6-3 conservative supermajority, which has fundamentally changed American constitutional law in just a few years and which has seen multiple Republican appointees caught in a steady stream of ethical controversies . In July, the court gave Donald Trump a major boost in his effort to return to the presidency when they created a new doctrine of criminal immunity for U.S. presidents. In the months ahead, we confront the unsettling prospect of election-related litigation that could once again thrust the justices back into the center of presidential politics.

Given all this, you might have expected the GOP appointees to be on their best behavior these days — perhaps even making a serious effort to persuade skeptical Americans that they are not political operatives and that they can be trusted to discharge their duties fairly and honestly.

That is not how one member — Justice Neil Gorsuch — chose to spend his summer vacation.

You might have missed it, but in August, Gorsuch published a book titled Over Ruled , which argues that there are too many laws on the books and that government officials at both the federal and state levels are enforcing them in increasingly unpredictable and unjust ways. The argument is not exactly original, but it takes on a different force when it comes from a sitting Supreme Court justice. Gorsuch went on a monthslong publicity tour to promote the book in front of largely conservative and Republican audiences.

The book, however, is riddled with glaring factual omissions and analytic errors that seriously call into question its reliability and rigor. In its essence, the book is standard conservative political propaganda — an anecdote-driven, broad-brush attack on legislators trying to solve contemporary social problems and on the executive branch officials trying to enforce the country’s laws. It represents a remarkable attack by a sitting Supreme Court justice on the other two branches of government.

This is not the first time that the quality and originality of Gorsuch’s writing has come into question, but his new book and the accompanying publicity tour provide further evidence for some of the most serious and persistent criticisms of him — that he is an ideologue ; that he will mislead the public if he thinks it will serve his purposes; and that he sees himself as a surrogate for political conservatives in particular, not the American people as a whole.

I made multiple requests over the last two months to interview Gorsuch or even receive a comment on his book, but they were consistently rebuffed. Eventually, I heard from his co-author, who offered a flimsy defense of the book. More on that below, but it inadvertently underscored how questionable Gorsuch’s book really is, as well as how little regard he ultimately appears to have for the public and anyone who does not already agree with him or his political beliefs. That’s particularly notable at a time when the conservatives on the court continue to wield extraordinary power and generate extraordinary public backlash .

It does not take long — the first chapter — before Gorsuch misleads the reader in Over Ruled .

He is discussing the case of John Yates, a commercial fisherman who was prosecuted after wildlife agents discovered that he had caught undersized red grouper in the Gulf of Mexico in violation of federal regulations.

Here is the story as Gorsuch tells it: One day in 2007, an agent boarded Yates’ boat and spent hours “rummaging through” a pile of fish before he then “declared” that Yates had caught 72 fish considered too small to capture under federal law. The agent returned several days later and again found nearly 70 undersized fish, but the measurements did not match those from days earlier. “From that and other evidence,” Gorsuch writes, “the agent grew suspicious that the fish at the dock were not the same fish he had measured at sea.”

Prosecutors eventually charged Yates with violating a provision of the Sarbanes-Oxley Act that makes it a crime to alter or falsify “any record, document, or tangible object” with the intent to impede a federal investigation. Yates was convicted at trial and sentenced to 30 days in prison, which he served. He later appealed, and in 2015, he prevailed at the Supreme Court when a plurality of justices agreed that the provision applies only to objects that “one can use to record or preserve information, not all objects in the physical world,” and that it therefore did not cover Yates’ misconduct.

Gorsuch lambastes federal officials for having “robbed [Yates] and his family of the life they cherished” and mocks them for trying “to extend financial fraud legislation to red grouper.” He argues that the charge relied on dubious and at times speculative evidence about why the fish on Yates’ boat appeared to be different when law enforcement officers returned after their first visit. In interviews about the book, Gorsuch has described the facts of the case in the same way — as an inexplicable tale of federal overreach.

Gorsuch provides a tidy and persuasive account of overzealous federal prosecutors, but he does not mention two important facts that change how you ought to see the case.

First, at Yates’ trial, the government presented testimony from a cooperating witness — a fisherman on the boat who worked for Yates — who testified that after the first visit, Yates instructed the crew to throw out the fish that had drawn the wildlife agent’s attention and to replace them. According to the witness, Yates also told them to lie to the government if asked about it.

Second, Yates was not just convicted on the Sarbanes-Oxley charge. He was also tried and convicted under a separate statute of destroying or removing property to prevent its seizure by federal authorities, and he did not contest that conviction at the Supreme Court.

The fact that Yates was tried and convicted under two different criminal statutes for the same misconduct strongly suggests that Yates would have received the same (quite modest) prison sentence even if the Sarbanes-Oxley charge had never been brought against him. It’s not clear what (if any) objection Gorsuch has to the prosecution on that second count — he does not mention it anywhere in the book — but it is not “financial fraud legislation.”

These are not obscure facts — they are contained on the first two pages of the Supreme Court’s opinion — but they are not mentioned anywhere in Gorsuch’s account.

Nor is this an isolated problem in the book. A review by CNN produced multiple, unrelated instances in which Gorsuch omitted material facts from the stories that he relays to readers.

In Gorsuch’s telling, Yates’ story is emblematic of a broader trend in American law. “Often enough,” he writes, “men and women going about their lives with no intention of harming anyone are getting thwacked, unexpectedly and at times haphazardly, by our multitude of statutes, rules, regulations, orders, edicts, and decrees.”

The argument — that there are too many laws, and that they are being too heavily enforced — is an odd one for a sitting Supreme Court justice to make. “As a judge, my job is to apply the law,” Gorsuch notes at one point, but Over Ruled has almost nothing to do with legal interpretation or theory , as other justices have written about. It is a straightforward call for deregulation.

Even setting aside the questionable optics, the book does not come close to establishing its thesis.

To support his argument about a government run amok, Gorsuch repurposes a Washington Post story from more than a decade ago about a magician who was supposedly the victim of aggressive federal regulators over his use of a rabbit. Another part of the book draws on a 2012 article from The New York Times about federal regulators dealing with cats at Ernest Hemingway’s house. Still another controversy discussed at length in the book concerns an incident in 1996 that resulted in the race car driver Bobby Unser receiving a $75 fine .

If the problem of over-enforcement had actually become ubiquitous, then Gorsuch would not have to trawl through old media stories in order to make his point. He also does not seem to realize that the media often reports on things precisely because the stories are unusual — precisely because they are not, in fact, everyday occurrences.

“Are these examples outliers?” Gorsuch casually asks at one point — as if this were not, in fact, the key question. “Maybe. But maybe they point to a truth, too.”

Or maybe they don’t.

In fact, most federal criminal prosecutions are immigration, drug and gun cases . The largest numbers of federal inmates are in custody because they were convicted of drug, weapon and sex offenses . The story is similar in state prison systems, where roughly 90 percent of the inmates are in custody because they were convicted of a violent offense, property crime or a drug offense .

The legal system is far from flawless — and plenty of Americans sincerely believe that there are too many laws and regulations in the country — but Gorsuch’s selective and misleadingly presented case studies do not tell us anything particularly useful about it.

To be sure, there are some redeeming features of the book. Gorsuch criticizes occupational licensing requirements, the exorbitant cost of legal services in this country and the ways in which they burden working- and middle-class Americans.

But what’s left out of the book is often just as instructive — if not more so — than what’s in it. His interest in government overreach stops short when it comes to liberal causes.

In an anecdotal book about overzealous prosecutors, there are no stories about people being sent to prison because they mistakenly tried to vote when they weren’t eligible or about laws that make it illegal to give voters water while they wait in line. There are no stories about women being arrested because they had miscarriages , part of the ongoing fallout from the decision by Gorsuch and his fellow Republican appointees to overturn Roe v. Wade.

Gorsuch was not willing to speak with me or answer any questions about his book, despite having spent much of the summer doing interviews with friendly conservative media figures to promote his book.

There were appearances on Megyn Kelly, Hugh Hewitt and Ben Shapiro’s shows, as well as a Q&A with the conservative opinion writer David French. Gorsuch went on three different Fox News shows over the course of several days. There was an interview with a legal analyst who clerked with Gorsuch and gushed over his nomination to the court.

After two months of trying and failing to get an audience with Gorsuch, I asked Gorsuch’s book publisher if he would comment simply on the problems with his chapter on John Yates: Why had he omitted some key facts? Was it an honest error? And would he, as a judge, accept such a misleading treatment of facts if a lawyer did something similar in a case before him?

I never got a response from Gorsuch, but I did receive an unsolicited statement from Gorsuch’s co-author — a former clerk named Janie Nitze whom Gorsuch describes in the book as “one of the most remarkable lawyers of her generation” and “the best of friends.” This didn’t appear to be the first time Nitze had mounted a public defense of the book without Gorsuch being willing to attach his own name to it.

“How can Politico complain with a straight face that our book didn’t address two facts about John Yates’s case when Politico omitted those very same facts in a lengthy piece it published about the case in 2014?” Nitze asked.

This was apparently a reference to a first-person account written by Yates himself that was published in the run-up to the Supreme Court’s oral argument. It appears that Yates obscured the same facts from our readers at the time, but that is hardly a reason for Gorsuch and Nitze to do the same.

“The truth is,” Nitze asserted, that “ Politico and many other media omitted those facts … because they have nothing to do with why his story matters.” She dismissed my concerns about the accuracy and fairness of the book’s account as “nonsense.”

Perhaps Gorsuch and Nitze believe that the witness who cooperated against Yates isn’t being truthful (though the jury that convicted Yates evidently disagreed), or perhaps they don’t believe that there should be any federal laws that prohibit the destruction of evidence — whether they were enacted as part of financial fraud legislation or otherwise . But whatever the case may be, their readers deserved a far more accurate and comprehensive account of the actual case and the underlying issues than the one that they got.

The publication of Gorsuch’s book will not alter the trajectory of American law, nor was it an explosive affair like the flying of questionable flags at Justice Samuel Alito’s homes. But it is a further sign of an institution whose members — particularly the conservatives — seem more uninterested in speaking to the entire country than ever in recent memory. That’s to say nothing of their questionable fidelity to the basic obligation to be honest with the public on matters of public concern.

They are content to speak largely, if not exclusively, to their political fellow travelers — and in the case of Gorsuch at least, to publicly use his position as a Supreme Court justice to advance a tendentious political agenda that has no place in the highest court in the land.