So much for the administrative state. The case studies Justice Neil Gorsuch and his co-author Janie Nitze marshal in Over Ruled show that the system the Progressives erected is not equal to the challenges of modern government. Whatever noble intentions might have motivated abandoning the original constitution, the authors’ critique eviscerates the idea that unleashing detached administrators is the best way to establish justice in America.

Sitting Supreme Court justices often write books, but Justice Gorsuch’s judicial philosophy explains why he would write this particular book instead of a memoir like many of his colleagues. After introducing the problem of “too much law,” Gorsuch writes that there is “not much” he can do about it because the job of a judge “is to apply the law.” Instead, the prologue indicates that he hopes readers will take the observations he makes about what is broken in the American legal system and do something about it.

Unlike Justice Ketanji Brown Jackson, who came in to edit an initial draft of her 2024 memoir Lovely One, Janie Nitze wrote that Justice Gorsuch “penned every word of [Over Ruled] but then insisted on giving [her] credit as coauthor anyhow.” That approach to the writing process gels with his judicial opinions expressing concern for how the law affects the individuals and groups who come through the courtrooms where he has presided.

The authors anchor their case against administrative abuse in the experiences of several ordinary Americans—people who were not acting maliciously but who were maimed by bureaucratic machinery nonetheless. In some of the following cases, not even judicial review saved the plaintiffs after running afoul of these agencies at the local, state, and federal levels:

• A group of monks in Louisiana got into trouble for trying to sell caskets without a license.
• An Amish family was tied up in court for almost a decade (and for two years after victory before the US Supreme Court) because the county threatened to kick them out of their home over a dispute about modern septic systems and their religious beliefs.
• Under Covid lockdown measures in California, the state banned a pastor’s weekly Bible study while liquor stores, hair salons, and tattoo parlors could remain open.
• The City of Philadelphia froze foster care placements through Catholic Social Services (CSS) because CSS disagreed with the city’s approach to LGBT+ policy.

One last example is worth considering in greater detail. A common explanation for the rise of the administrative state, and the expansion of the federal government in general, involves the real suffering brought about by some of the excesses of the industrial revolution. Over Ruled tells the story of Butte, Montana, now home of one of the largest hazardous waste sites in the country.

In the 1880s, Butte’s mining industry grew to produce half the nation’s supply of copper, but by 1907 it also emitted over 30 tons of arsenic, lead, and other pollutants every day. The US Environmental Protection Agency (EPA) designated the 300 miles around Butte as a Superfund site (an area where the agency would manage cleanup efforts) in the 1980s. Even after 40 years and hundreds of millions of dollars of environmental remediation, people and animals living there are still getting sick.

The experts at the EPA determined that the corporate owner of the mining facilities only had to clean up certain residential and pasture areas. They addressed some places where arsenic concentrations in the soil reached levels over double the limits some localities place on their landfills. For pasturelands, the threshold for cleaning was for concentrations over ten times that level.

That’s right. The EPA considered the threat posed by arsenic in the soil where people live and grow food or raise livestock to be within an “acceptable cancer risk range” even though some cities think far lower concentrations of the poison are too dangerous even for the places they keep their garbage. Far from protecting the American public from the harms brought about by “rapacious capitalism,” this appendage of the administrative state seems to be making things worse by giving residents a false sense of security and denying them the right to do anything about it.

Instead of just leaving the residents near the Superfund site to suffer from lackluster cleanup efforts, the EPA fought a group that tried to get the mining company to do a more thorough job under Montana state law. In 2020, the US Supreme Court sided with the company against the landowners, agreeing with the contention that landowners could do no cleanup work, even at their own expense, without EPA permission.

While Gorsuch concedes that the Court’s decision is “understandable,” he asks what the local residents are “supposed to do when faraway officials say that they and their children face an ‘acceptable cancer risk range’ even as they watch family members, friends, and neighbors felled by disease?” This poignant conflict between expertise and experience is familiar to more Americans than ever in the aftermath of Covid-19.

One can quibble with a detail here and there in some of those examples, but each incident seems to reveal a mode of governance pursuing invariably the same object—a design to reduce families and individuals under an updated model of despotism. Earlier generations of Americans refused to take such matters lightly.

Over Ruled provides a capable survey of the history preceding how Americans fell into a bureaucratic nightmare. The book references Hillsdale College professor Ronald J. Pestritto’s pathbreaking work examining Woodrow Wilson’s dream of copying European administrative systems that would see “to the daily rulemaking and regulation of public life” because Wilson wanted administrators to “regulate progress, unhindered by the realm of politics.” One can forget that individual administrators are themselves political. It turns out that abandoning the traditional reliance on a republican form of government worked out about as well as recent attempts at nation-building abroad. Prussian bureaucracy does not fit the American character.

The examples Gorsuch and Nitze raise drive home the injustice of a legal system that only the wealthy and well-connected can navigate. As they put it, “Those who can afford sophisticated lawyers may be able to muddle through … but what about everyday Americans and the rights promised to them in our Declaration of Independence, Constitution, and Bill of Rights?” Turns out, they are just so many broken eggs in the proverbial omelet made by the utopian advocate for our administrative state.

Or, more charitably, those advocates have acted out the tragedy anticipated by Friedrich Hayek in The Road to Serfdom that “in our endeavor consciously to shape our future in accordance with high ideals, we should in fact unwittingly produce the very opposite of what we have been striving for.” Either way, as the subtitle to Over Ruled reminds us, too much law has a very human toll.

In a few places where the book discusses the enormous size of the federal code, Publius appears with his warning from Federalist #62 that mutable policy, unstable government, and voluminous and incoherent laws poison the blessing of liberty. These references to the debates over the ratification of the US Constitution put readers in a similar place as philosophy majors who discover early in their coursework that all the big questions had been considered thousands of years ago.

There is nothing new under the sun. The American Founders understood the delicate balance they needed to strike in empowering the federal government to provide steady administration while leaving broad latitude for liberty. Indeed, they even considered the option of an administrative state and found it wanting. Publius wrote in Federalist #47 that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed [sic], or elective, may justly be pronounced the very definition of tyranny.” It does not matter how agency officials obtain their power; wielding it the way they do is inimical to free government.

So, what are readers supposed to take away from all of this? Toward the end of the book, Gorsuch argues that “our democracy doesn’t depend just on a people equipped with the knowledge necessary to engage in the hard work of self-government” but “on the courage and sacrifice of men and women willing to stand up … to defend the rights to democratic self-rule, equal treatment, life, liberty, and the pursuit of happiness that belongs to us all.” He calls readers to go beyond reading books and scrolling their X feed to exercise their republican muscles.

Over Ruled was released before the 2024 presidential election, but it comes at a perfect time to help explain the populist reappraisal of how Washington, DC, does business. Any thoughtful person considering the best way forward for American government would be well-served by considering the case for freedom Gorsuch and Nitze make.

Early in the book and again in the epilogue, the authors mention fraying social ties and note that Americans “are less inclined to respect or even tolerate different ideas about how to live, raise children, and pray.” With so much of the law at stake in every election, can you blame us? The gulf between “different ideas” seems to be getting wider than ever and might even make ordinary politics, where people come together to talk through how to pursue the common good, impossible.

Gorsuch remains optimistic. He writes that “almost no serious thinker in Europe thought a democracy could survive long without devolving into chaos or tyranny. Yet almost 250 years later, here we stand.” America exists, yes, but one wonders whether Gorsuch was more right when he wrote that we may still have courts, Congress, a president, a Bill of Rights, and something called law but “the meaning of those words will be hollowed out” when an authoritarian state arises.

Maybe things are not that bad. Yet one worries that after over one hundred years of experimenting with an overweening administrative state, this is what a majority of Americans really want. Or, maybe Gorsuch was prescient in writing his optimistic epilogue mere months before the 2024 presidential election.

The populist reassertion of control over the executive power is not an assault on “Our Democracy.” The new administration’s moves, coupled with the hoped-for restoration of congressional competence following the demise of the Chevron doctrine, seem more like the first steps toward revitalizing our republican form of government after more than a century of “progress.” To paraphrase C. S. Lewis, when you’ve found you’re heading in the wrong direction, then turning around is the quickest way back to the right path.