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Aug. 11, 2024 - The Ben Shapiro Show
44:17
The Human Toll of Too Much Law | Justice Neil Gorsuch
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If you look around the world, you're going to find better bills of rights than ours.
I mean, North Korea happens to have my favorite bill of rights.
It has everything we promise, all manner of good things, and even my favorite right, the right to relaxation, which I really need in the summertime after a long term.
But it isn't worth the paper it's written on.
Why isn't it worth the paper it's written on?
Because all power is concentrated in a single set of hands.
or a single group's hands. And that's what our framers knew, that men are no angels, as Madison
said, and you have to assiduously divide and check and balance power at every turn. And when we forget
that, it's a danger I worry about.
Justice Neil Gorsuch has served on the United States Supreme Court since 2017.
Originally hailing from Colorado, Justice Gorsuch previously worked as a trial lawyer and served on the Tenth Circuit Court of Appeals before he was appointed to the Supreme Court by Donald Trump to fill the seat of the late Justice Antonin Scalia.
In 2019, Justice Gorsuch published a book titled A Republic, If You Can Keep It, where he offers a primer on American civics and his personal reflections on the remarkable structure of our Constitution.
In his latest book, Overruled, Justice Gorsuch explores the effects of our government's expanding federal criminal code and the real-world consequences when seemingly innocuous activities entangle citizens with federal law.
Justice Gorsuch's insights on good governance span from the philosophical origins of the Founding Fathers to the workings of our judicial system today.
In this episode, we discuss Justice Gorsuch's inspiration for the book, the structures inherent to our government that keep us free, and his view on how the judicial system may change in the wake of the reversal of Chevron deference.
Justice Gorsuch also delves into the stories of Americans whose livelihoods have been negatively impacted by over-regulation.
This conversation is essential listening for anyone eager to better understand the functioning of our government.
Stay tuned and welcome back to another episode of the Sunday special.
Justice Gorsuch, thanks so much for stopping by.
I really appreciate it.
Delighted to be here, Ben.
So you have a brand new book out, titled Overruled, which is really about the prevalence of law in Americans' daily life and how it's multiplied over time.
Can you sort of first give us an overview of just how intrusive lawmaking and sort of the legal system has become into the everyday lives of Americans?
Well, let me start with why I wrote the book, and it's because I've been a judge for 18 years now, and I just kept seeing cases where ordinary Americans, hardworking, decent people, Trying to do the right thing.
Just getting caught up in laws and legal problems that they had no way to imagine.
Just getting whacked.
And to give you a sense of the scope of it, when I started to see, when I peeled back this onion, the U.S.
Code has doubled in length since 1980-something.
In my lifetime.
And people say Congress hasn't been busy.
Turns out that according to some reports, they add to the U.S.
Code two to three million new words to our laws every single year.
And of course, that's just the tip of the iceberg.
Our federal agencies have been busy, too.
There are so many federal crimes now buried in those regulations adopted by agencies, not necessarily by Congress, that nobody knows how many there are.
Conservative estimates put them at 300,000.
The Federal Register 100 years ago when it started was 16 pages long.
This year, in recent years, the government adds 60,000 to 70,000 pages to the Federal Register every single year.
So that's kind of a scope.
Some numbers for you.
But the book isn't really about the numbers.
It's about the people and the lives who are affected by those numbers.
So when you look at the breakdown of how exactly that works, as you go through in the book, the right likes to put a lot of focus on the administrative state, about the fact that it is regulators who are largely unelected who are making these rules.
Nobody has a clue what's getting put in the rules.
Then they become the law.
Most people have no idea what the law actually is.
You can hire a lawyer.
And if you're rich enough, then maybe you're able to navigate the laws.
If you're not rich, then you're probably screwed, depending on how tightly regulated any particular segment is.
But whose fault is that?
Is that the administrator's fault, or is that the fault of a Congress that has spent the last century basically delegating more and more power to an executive branch because it provides a lack of accountability?
Well, I don't think any one institution is to blame.
I think that's a mistake to think about it that way, because law has proliferated at the state level as well.
It's unlawful to sing the Star Spangled Banner in a certain manner in Massachusetts.
You can go to prison for that.
I faced a case when I was a circuit judge rising from New Mexico, where I think he was a seventh grader, got arrested for burping in class.
You know, it used to be you're taken to the principal's office, your parents might get called.
It was pretty funny, apparently.
The kids really enjoyed it.
Teacher, not so much.
So, it's happening at the state level.
As I mentioned, it's happening in Congress and it's happening in the administrative agencies.
So, I don't think you can blame any one institution for this.
This is something that's remarkable and the speed with which it's happening, again, in my lifetime, is what I wanted to Think about and focus on maybe where it's coming from and why.
But I think the impulses are much deeper than pointing to any single institution.
And you really go into depth in that about about that in the book when you talk specifically about the fact that law is has become a sort of response to the lack of social capital that In a situation in which everyone trusts one another, you just don't need as many laws.
I mean, in my local religious community, there are no laws that compel us to do anything.
We just have social sanctions that apply.
When somebody violates the social precepts, the unspoken and unwritten rules of the social group, then the social group tends to ostracize or they tend to cudgel in particular ways or curb that behavior in particular ways.
When it comes to a family, you never have like a written constitution that dictates exactly how the family is going to work because presumably there's a high level of social capital.
But as the country has grown larger and larger, more and more disparate, more and more different, then the temptation is to fill that gap with laws to govern every particular scenario because you can't trust your neighbor as much because your neighbor might not be your neighbor.
They might live 3,000 miles away from you and have a completely different way of viewing the world, but you still have to live in a country together.
Well, I think what you're touching on is really the heart of the book, and it's really Madison's question to us as well.
You know, the framework Of our constitution, the backbone of it, the Virginia plan, and he wrote that, of course, we need some laws, right?
We can't live without them.
Our liberties depend upon it.
Our aspirations for equal treatment under the law depend on it.
But at the same time, can we have too much law?
And he said, absolutely.
And in fact, he thought that was the greater danger both to our liberties and to our aspirations for equality, because who can manage a world with too much law or so much law?
The moneyed and the connected can find their way.
They can even capture agencies, regulatory capture today.
They love barriers to entry.
We can talk about all of that.
But yes, and why?
I think you're putting your finger on, I think, probably the heart of the problem.
I'm no social scientist or psychologist, but trust has a lot to do with it, I think.
When we trust ourselves to make good judgments, when we trust our families to make good judgments, when we trust one another in our communities and are able to work together to solve problems in our communities, we don't need law, right?
But some of those old identities, our faith, our families, our simple local connections, right?
I mean, poker nights have given way to online gambling and bridge night is now, you know, you do Wordle online.
We've lost a lot of human connections, the loneliness epidemic that people write about.
Putnam's book, Bowling Alone, what's happened to our nation and our isolation from one another.
When that happens, where else do you have to go?
Who else are you going to trust?
But some new identities associated maybe with parties and with the state.
When you look at sort of the history of the development of this giant bureaucracy, the amount of rulemaking, you trace this dramatic increase to sort of the latter half of the 20th century, but its roots lie in Wilsonian administrative state theories, and really that comes from German progressivism.
I mean, the original checks and balances of the Constitution were largely designed to
prevent things from getting done in the absence of a large-scale approval of the things.
The American public really had to be nearly unanimous in a lot of ways in order to get
big things done.
And by the time we got to the early 20th century, Woodrow Wilson, famously, and Teddy Roosevelt
too, really believed that now the federal government had become unworkable.
It just was not able to get the things done they needed to get done.
And so the idea was governance from above by experts who could thwart the checks and
balances that were creating such obstruction.
How much of what we see now is due to that?
And how much of it is due to, do you think, the sort of social breakdown, the social fabric
that really didn't really break down in the United States fully until probably the late
1960s and 1970s and on, and now has been exacerbated by the rise of the internet?
In other words, how much of this is a societal problem, and how much of this is the structures
of government that were fundamentally changed in the early 20th century?
Yeah, I'm probably the wrong person to ask on that, Ben, because, you know, that is a deep historical question.
And I think the history on that's going to be written a hundred years from now.
But I think both things can be true.
It's an and, not an or, right?
What we've seen in my lifetime, when the U.S.
code doubles in length in 40 years, when the number of criminals in our federal criminal justice system explodes, there are more people serving today life sentences in federal prison than there were serving any sentence in 1970.
Something happened Around 1970, I think.
And I think you're right.
It probably has a lot to do with social trust.
Are you also correct, though, that the intellectual foundation for it was laid much earlier in Wilson's writings?
Absolutely.
I don't think you can ignore that part of the story.
And we discussed that in the book, right?
Wilson admired Prussian bureaucracy.
for its efficiency and its expertise, and he thought the tripartite system of government was antiquated, and we needed experts to rule from above.
I think what he overlooked, I would argue, and what James Madison knew instinctively is the value of the wisdom of the masses.
There are at least two kinds of knowledge, right?
Expertise, and it's important, and I don't think we should denigrate it.
It just has a place in our social order.
But the wisdom of the masses is what Madison tried to capture in our legislative branch, right?
Bringing together all voices and having debate and decide.
Everything would be aired.
And in that system, we have to get through two houses and a president Oftentimes, minorities play a key role.
They stand at the fulcrum of power and actually protects minority rights.
Francis Galton, a cousin of Charles Darwin, once attended a county fair in England, and there was a guess the weight of the ox contest.
And he noticed that he looked at all the guesses by the experts, and then he looked at all the guesses by ordinary people, and he found that the average guess of the ordinary people was the most accurate.
That's what we call the wisdom of the masses today.
And that is an important part of our system of government, too.
And I think Wilson just maybe missed that.
We'll get to more on this in just one moment.
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I think one of the things that is fascinating about this or the Wilsonian vision of government, especially because it was adopted from German progressivism, is that the whole model of German progressivism under Bismarck was that he was attempting to legitimately create a nation out of a series of nations.
I mean, if you look at German history, it's a series of principalities.
Prussia is only one of those principalities.
And Bismarck is attempting to create a full-scale German nationalism And the way to do that is top-down because it has to be created in almost ersatz fashion.
You need the imprimatur of authority with a consistently applied minutiae-based law in order to establish a social capital that doesn't pre-exist.
And the story of the United States is precisely the opposite, which is that you have authority that's bleeding up from the bottom.
You know, Tocqueville saw this when he visited the United States in the 1830s.
obviously a federalism where the basic idea is that the people are to be represented in
the Constitution, but so are the states.
And so this idea is that the highest level of authorities exist at the lowest possible
level of government, as opposed to a German progressive or Wilsonian view where the highest
levels of authority exist at the highest levels of government.
You know, Tocqueville saw this when he visited the United States in the 1830s.
He said what a British lord might be undertaking on behalf of the government in England or
the French government would do.
The American people were doing in their own communities themselves.
Because they trusted each other in part, I'm sure.
But they were coming together to solve their own problems.
And, you know, that became what Brandeis called our laboratories of democracy.
Right?
The best ideas percolate up.
And everybody has a chance to participate and shape them.
And you're probably going to get wiser policies when everybody can be heard and participate in the process and different ideas can be tried.
That was the system of government the framers wanted for us.
It's interesting that if you look at kind of the intellectual history, you're talking about Wilsonian ideals, that even people like James Landis and William O. Douglas, whom I admire greatly, a fellow fellow justice from the West, Who are real solid Wilsonians in their youth and avid new dealers came over time to recognize that perhaps, just perhaps, we've gone too far.
And Douglas talked about the dangers of delegating too much of our legislative responsibility outside of Congress.
And Landis wrote a really kind of incredible report for John F. Kennedy when he became president along the same lines.
The founders created a general system of neutral applicability, and it seems as though that that has fallen by the wayside.
That depending on where you are in political power, what's happening politically at the time, the sides will actually flip politically.
Sometimes you'll have one side that will make the argument that you need a stronger federal government and weaker state governments, and then it'll immediately flip, and depending on who is in control, It'll be precisely the reverse.
And the job of the judiciary, theoretically, is to maintain that original structure.
Because if the structures of government change based on who's in power, then that is precisely the level of unpredictability in law and regulation that make life unlivable for the normal citizen.
I think our system of government was genius.
And the separation of powers is what keeps us free.
And it is what has made this country great.
and the rule of law so profoundly stable in this country.
I mean, you go, if you look around the world, you're going to find better bills of rights than ours.
I mean, North Korea happens to have my favorite bill of rights.
It has everything we promise, all manner of good things, and even my favorite right, the right to relaxation, which I really need in the summertime after a long term.
But it isn't worth the paper it's written on.
Why isn't it worth the paper it's written on?
Because all power is concentrated in a single set of hands or a single group's hands.
And that's what our framers knew, that men are no angels, as Madison said.
And you have to assiduously divide and check and balance power at every turn.
And when we forget that, it's a danger I worry about.
So in the system, obviously, you're on the Supreme Court.
What is the role of the judiciary in this system?
Because there are those who would argue that, OK, fine, so let Congress fight it out with the executive, let the states fight it out with Congress and the executive.
What is the role of the judiciary in either greasing the wheels here and making sure the system continues to run or in stopping the excesses?
Well, my job is to decide cases and controversies.
That's what Article 3 says.
So you've got to bring me a case, Ben, and you've got to have standing, and it's got to be something I can hear as a judge.
But, you know, it is an interesting question.
Why do we have this anti-democratic institution in our separation of powers?
And in Madison's mind, and we talk about this in the book, lawmaking should be hard.
And it should involve everybody.
The wisdom of the masses.
We've talked about that.
Once you've got laws passed, the executive, all that power is vested in one person because it should be fairly and quickly and efficiently administered.
No committees.
But when the executive comes after you for violating the law, Shouldn't you have a neutral judge and a jury of your peers decide those cases?
People who are not beholden to the political branches and who don't put any fingers on the scale.
I mean, Lady Justice, when she's portrayed, has a blindfold on and the scales are usually evenly tilted, unless you're in an autocratic society.
I was in one not long ago and there Lady Justice is portrayed without a blindfold.
And the scales of justice are kind of thrown by the wayside.
You know, when you look at some of the cases, obviously we won't talk about specific cases,
but sort of the general idea of deference to executive branch agencies.
Obviously, the Supreme Court recently overruled Chevron's deference and suggested that actually
the role of the judiciary is not in simply allowing agencies to determine for themselves
what the law is and then to enforce that law, because that's actually a union of legislative,
executive and judicial power all in one branch.
But how is the common man to stand up against a branch of government that combines all three powers without any sort of checks and balances?
Maybe you can explain to people exactly why it's important that, for the common man, he be able to appeal, say, an administrative ruling.
Why shouldn't the cult of expertise win in these particular cases?
Well, I'd love to kind of answer that and then maybe tell a story if I can from the book.
So, you know, at a high level of generality, if any agency or anyone, just think about it, can make the law, enforce the law, and then try your case, how's that going to go for you?
Right?
And that was kind of the question we faced in the case this term you're alluding to.
And it's no surprise that when an agency is both in charge of pursuing the charges against you and adjudicating, it usually wins.
It almost always wins.
The procedures are not the same as they are in court.
You're not going to get all of the same protections that you would in court.
You're not going to get a jury as you would in court.
And the judge is just another employee of that agency.
And who knows what happens to him or her If the rulings don't go the way they like.
So that's what's at stake when you're in and out of court.
And Americans, according to Professor Jonathan Turley, are today 10 times more likely to face one of these administrative judges than they are a judge in court.
So that's kind of what's at stake.
And to put a human spin on it, if I might, can I tell a story of Marty Hahn?
Please.
Well, it just brings it down to a very simple level, I think.
So Marty is a magician.
He does children's shows.
And one day he's pulling the rabbit out of the hat and somebody comes up to him and says, do you have a license for that rabbit?
Flashes a badge.
I'm from the U.S.
Department of Agriculture.
Marty says, I know.
And it turns out that the law said that you have to have a license if you're a zoo, a carnival or an animal exhibitor.
Now, what does that mean?
Turns out the agency had taken the ball and run with it and adopted regulations which made even backyard magicians subject to federal licensing requirements.
OK, that's kind of what we're talking about.
What does that mean for Marty and his life?
He doesn't want to violate the law.
He didn't know he was violating the law.
How is he supposed to know?
It turns out, if the rabbit had instead been an iguana, he wouldn't have needed a license.
He found out from the agent.
And on further discussion, he learned that he meant for the rabbit to be stew that evening, no license required.
But because he was pulling him out of the hat, he needed to have a license.
Fine.
Marty's law-abiding.
He goes and does all the paperwork.
But then a few years later, Hurricane Katrina happens.
And they say, well, they come up with a new thing.
And they write a letter.
Dear members of our regulated community, You now need a disaster preparedness plan.
And it has to cover all kinds of imaginable disasters, everything from hurricanes to chemical spills.
Marty's talking to an agent.
He lives in Missouri.
He says, we don't have hurricanes.
We do have tornadoes.
And my plan is to get the family in the basement and then the family dog and cat.
And if there's time, I'll get the rabbit.
You know, we don't care about the dog and the cat.
The rabbit's got to get down there.
He has to write a 28-page emergency preparedness plan and has to hire a disaster emergency preparedness plan expert to help him with that.
Even after all that, he has to then endure home inspection visits.
And during one of those, the agent wants to see the cage where the rabbit's kept.
So he shows him the cage, takes to the shows, and says, well, how do you know how to carry the rabbit the right way up?
Marty says, well, there's a handle on the top.
The agent says, that's no good.
You have to have one of those stickers, this way up stickers.
Marty says, well, where do I get those?
And the agent says, I'll send you some.
Two weeks later, he gets 200 stickers in the mail.
Your tax dollars at work.
That's what the human toll of this kind of thing is, and that's a funny story.
That one has an okay ending.
The agency, in the end, withdrew those regulations for people like Marty.
Not every story in the book has such a happy ending.
We'll get to more on this in just a moment.
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Well, one of the things I think that people also have to see about these regulatory agencies and the regulations coming there from is that they really undermine the Americans' general trust in the government.
It's Princess Leia talking to Tarkin.
I mean, the harder they try to grasp these galaxies, the more will slip through your fingers.
The harder the government tries to crack down on minutia, the more people distrust the government because the simple fact is that the government cannot game out for every single one of these circumstances, nor should they be involved Well, thank you for explaining the Star War reference, Ben.
And then beyond that, there's the issue of regulatory capture, this massive issue of
regulations that are being written very often in cahoots with lobbyists who are working
with staffers for particular agencies.
So all of this undermines the general trust in the government.
So ironically, the more that, as you say, the law multiplies, the less trust people
tend to have in the law itself.
Well thank you for explaining the Star War reference, Ben.
But yeah, none of this is new.
Madison knew this too.
He said that the problem and Tocqueville wrote about this, right?
The more law you have, the danger is you're actually going to disaffect people from law and their institutions.
Caligula knew this, right?
He used to post his laws written in a hand so small and a column so high, deliberately did this so that nobody could ever be sure what the law was.
So they live in fear.
Fear and distrust for our institutions and for law itself is one of the costs of too much law.
You talk about regulatory capture.
I've got a story in the book that kind of tells the story on that, too.
It involves some monks in Louisiana.
They used to sell timber from their land to support themselves, but after Hurricane Katrina, that wouldn't work anymore, so they tried to get into the casket business.
They make caskets for monks who pass, and they thought perhaps other people would want simple caskets for their funerals that are handcrafted by monks.
Well, good luck!
The Louisiana Funeral Directors Association went after them because apparently in order to sell caskets in Louisiana, you have to have all kinds of licenses and a funeral home with a parlor and all that.
They didn't want to, they didn't want, they just wanted to sell caskets.
But the funeral home regulators had become so powerful, they had overtaken and effectively captured the agency.
Monks took years and years of litigation.
That one has a happy ending.
I learned another one, uh, the other day about the Reagan library.
You know, President Reagan really wanted to be buried with his wife at the Reagan library.
Well, it turns out you just can't bury people in California.
And they told him, no, you had to have a funeral director on staff at the library.
So the head of the library had to go to funeral director school so that the president could be buried there.
I did not ask whether they still have a funeral director on staff or whether the regulations might require one because I don't want them to become federal prison criminals either or stateless.
Well, Justice Gorsuch, what are the solutions?
I mean, you could theoretically see a Congress that takes back its own power and starts to write regulations itself, as opposed to just delegating them to these agencies.
You could see agencies starting to police themselves, but our system of government is really not built for people policing themselves.
In fact, precisely the opposite.
So, what is the way this gets solved?
So I don't think there's going to be any one solution Ben, this is too big of a problem, right?
At the most basic level, I don't think we could ignore the need for civic education.
So at least people understand what we're talking about, why we have three branches of government, I mean, a third of Americans can't name the three branches of government, let alone know why we have them.
Sixty percent of Americans would fail the citizenship test my wife took to become an American citizen.
And let me tell you, that test is a heck of a lot easier than filling out the forms required, which I wasn't very good at.
OK, so this isn't going to work unless the American people want it to work and want it to work.
They have to know how it was designed.
We have to also be able to talk with one another again and learn how to disagree, because democracy at the end of the day is about disagreement.
Disagreements making our ideas stronger and our decisions better.
And then we need to learn how to win and lose, debate, decide and move on.
That's what we do in this court every day.
I win some, I lose some.
And we have to learn how to do that again.
OK, that's really basic stuff, I admit.
Your question's bigger than that.
What can we do as American citizens?
A lot, I think, as it turns out.
We talk about this in the last chapter of the book.
What can you do?
What can I do?
The answer is a judge.
Not much.
It's up to the American people.
Nine people aren't going to save you from these problems.
You have to do it yourself.
So I see a lot of things, hopeful things.
I point out some examples.
Did you know in Idaho, not long ago, The legislature said we're going to eliminate the entire administrative code of the state except for those provisions the governor deems important enough to preserve.
Texas has a sunset commission that eliminates agencies after a set number of years unless they're expressly reauthorized.
New York and New Jersey have commissions to eliminate old laws that are no longer needed on the books this is starting to happen at the state and local level and those licensing problems we talked about like with the monks.
Increasingly, states are really looking hard at that.
I mean, there was a time when the only regulated professions were law, medicine, and a couple others.
And now, recently in Texas, Texas of all places, 500 professions were being regulated.
And they started to realize that's too much.
And they started peeling that back.
And there's lots of good things going on there.
At the federal level, it's more of a challenge, okay?
But at least I think this is something that we can recognize as a bipartisan concern.
You know, President Trump had that, if you're going to put in a new regulation, two have to go.
President Obama also had some important deregulatory initiatives and spoke about it at the State of the Union, where he quipped that it's gotten so complex that I think the Interior Department regulates salmon when they're in freshwater, the Commerce Department when they're in saltwater, and it gets more complicated than that when they're smoked.
And the fact checkers thought he'd overstated the complexity.
I went busy to work and found out he actually understated it.
So, seeing the problem at the federal level is great.
Can I give you one more example of something that gives me hope, right, at the federal level?
Well, for most of my life, certainly after World War II, for a long period of time, the airline industry in our country was heavily regulated.
By the Civil Aeronautics Board, one of those alphabet soup agencies created in the New Deal thereafter.
And you could not start a new airline without permission from the government.
You could not offer a new route without permission, nor could you change your fares.
And you know, in the 1970s, on a bipartisan basis, really spearheaded by my friend and former colleague Steve Breyer, when he was working for Ted Kennedy on the Judiciary Committee, sat down and said, does this make any sense?
Yes, flying is very comfortable, but only a few can afford it.
Maybe we need to do something about this.
And they held hearings.
And you know what they found out?
The only people who liked the Civil Aeronautics Board were the Civil Aeronautics Board and the regulated industry because they were able to create all these barriers to entry to protect themselves.
And they decided to do something about it.
Steve Breyer and Ted Kennedy, on a bipartisan basis, actually eliminated an entire federal agency.
And it led to the ability of Americans to afford to fly.
Now, we're all cramped in together.
We have to pay 50 bucks for our hand luggage.
But the opportunities that open for us are enormous as a people.
And we have a bipartisan reform to banks.
So I think there's reason for hope then.
We'll get to more on this in a moment.
First, amid rising tensions in Israel, on Thursday, August 1st, the International Fellowship of Christians and Jews welcomed a flight of 155 new Olim, those are immigrants, from France to Israel.
Despite the threat of an intensifying war, of the 256 Olim the Fellowship has welcomed to Israel last week, 187 have been from France, because France is a disaster area.
This latest flight brings the number of French Olim who have arrived in Israel since October 7th to more than 1,000.
More than 24,000 people have made Aliyah to Israel globally since October 7th.
The fact that Jews are still willing to go to a country under direct attack rather than live in fear in France speaks volumes about the incredible rise in unchecked antisemitism in France.
We're looking for 500 listeners to join me by donating $100 to meet these urgent security needs.
Thanks to a generous IFCJ supporter, your gift will be matched, doubling your impact in the Holy Land.
To give to IFCJ, visit BenForTheFellowship.org.
Again, that's www.BenForTheFellowship.org.
They're doing all sorts of amazing work on a humanitarian level to people who are suffering right now.
Israel's under dire threat.
Go help out right now.
BenForTheFellowship.org.
God bless and thank you.
So you mentioned earlier civic education and people getting familiar with the system of government.
This is something that I harp on on my show is that people spend way too much time thinking about the particular people in government and not enough time thinking about the incentive structures, which is, of course, a Thomas Sowell point, is that it's never about getting the right person in the right place.
It's more about making the wrong person do the right thing via the incentive structures that are provided by the government or by the governmental system or whatever system you're talking about.
Let's say that you were setting up a civic education for kids and you're looking at primary tax.
What are the most important things?
We have a big young audience, obviously.
A lot of teenagers listen to this show.
What are the most important things for, say, a 15-year-old kid to read and understand in order to really understand what you're talking about here?
Well, I think there's, you know, one organization I'm involved with, by way of disclosure, is the Constitution Center in Philadelphia.
And the resources they have online for free are incredible.
You can, they have something called an interactive constitution.
You can click on any clause of the constitution and get three things immediately.
One, two scholars who disagree about the clause's meaning and appropriate interpretation, but they'll sit down first and talk about what they agree on.
And then you'll have the two other videos with their additional independent thoughts.
You can also read there all the books that James Madison read as he was preparing for the Constitutional Convention.
They have those primary resources there.
And they have also a curriculum for high schools that are free for use to teach about the Constitution and our history in really an incredibly powerful way.
And it starts not with the Constitution's text, but with a unit on civil dialogue and learning how to You know, disagree without being disagreeable with one another.
How to do debate without hating or hurting one another.
And I think it's a tremendous resource.
So that's just one place I turn to.
If you're younger than that still, iCivics is a group that was started by Sandra Day O'Connor.
And it really aims at middle school kids.
And there are interactive games to play that will teach you about the Constitution and our history.
There's a new one involving Colonial Williamsburg and you can pretend you're a spy right during the beginning of the independence movement.
It's a lot of fun.
I'm also involved with Colonial Williamsburg and it's kind of happy to see those two organizations get together and do that as we prepare for the Declaration's 250th anniversary.
So, those are just a few things that I point to where young people can just get an immense amount of material for free.
So, you mentioned comedy and civil dialogue, and obviously that's something that's in very short supply in the United States right now, generally.
I was wondering if you could give sort of a window into what it's like to make any decision at the Supreme Court level.
You're talking about some of the most important decisions in American history that are happening right now, or have happened over the course of the last couple of terms.
Yet your job is to get in a room with people, many of whom disagree with one another and try and hash out either a consensus or where you disagree.
What does that process actually look like for people who aren't in the room?
Yeah.
Well, can I, can I, I'd like to get to that, but can I back up and do a little bit of forest before I get to the tree?
Okay.
So there are 340 million of us or thereabouts.
You all file 50 million lawsuits a year in this country, and I'm not counting your speeding tickets, Ben, OK?
You are a litigious bunch, all right?
And yet almost all of those cases are resolved in a trial court, somebody winning, somebody losing, a settlement happening without any appeal.
What does that say?
OK, I represented plenty of losing parties as a lawyer.
What it says is our rule of law is pretty determinate.
Right?
That really there's a right answer and there's a wrong answer in most every case.
You just have to look for it.
Okay.
Now, a tiny fraction wind up going to appeals, like on my old Court of Appeals, I sat on the 10th Circuit.
I sat with judges appointed by President Obama, all the way back to President Lyndon Baines Johnson.
Two time zones, six states, 20% of the continental United States.
We sit in panels of three.
Yet we were able to agree unanimously on the right outcome of cases 95% of the time.
Again, our law is pretty determinate, and that is a miracle.
That is not true throughout most of human history.
Most of human history looks more like Caligula we talked about earlier than it does this, and that's still true in a lot of places in the world today.
Okay, now you asked me about my court.
Fair enough.
We decide 70 cases a year, more or less.
Now, one could argue we should take a few more or a few fewer, but it's somewhere in that ballpark.
Now, why so few?
Because our primary job is to resolve disputes about the law's meaning between the lower courts, because the Constitution or a statute can't mean one thing in California and another thing in New York, right?
So we only really take cases when the lower courts have disagreed, that tiny, tiny fraction of cases.
Now, you've got nine of us.
We've been appointed by five different presidents.
We come from all across the country.
Well, a lot of New Yorkers, but the idea is we're supposed to come from across the country.
And we've been over 30 different years of appointments.
Now, can you get nine people to agree on where to go to lunch?
That's pretty hard in my family.
Yet, In those cases, those 70 or so cases, we're able to reach a unanimous judgment about 40% of the time.
Okay?
That's hard work.
That's respect.
That's collegiality.
That's understanding where one another's coming from.
My old friend Steve Breyer likes to say, if you listen to someone talk long enough, you're going to find something you agree with.
And maybe you'll start there.
And that's what we do a lot of around here.
Now, everybody likes to focus on the 6-3's or the 5-4's, and fair enough.
And that's about a third of our docket.
But that third of the docket isn't all the 6-3's you're thinking of.
Only about half of them are.
Okay?
So, half of those 6-3's are something else altogether.
And those numbers, that 40% and that maybe 25% to 33% that we talked about, unanimous versus divided kind of cases, are the same today.
As they were in 1945, when Franklin Roosevelt had appointed eight of the nine justices to the Supreme Court.
So my message is, we're doing what we've always been doing.
And I think we're doing pretty well if we're doing as well as they did in 1945, when eight of them had more or less the same presidential appointment background, at least.
So final question for you, Justice Gorsuch.
So obviously the book is great.
People should go out and grab a copy today.
You're obviously very optimistic in how you approach all of these issues.
It's hard for those of us who follow politics daily for a living to not be pessimistic about the future.
What is your point of greatest optimism that we should all sort of like take a chill pill and recognize that things are going to be okay?
Yeah.
It's when I see people like Isis Brantley, who lost Lost her home and her business, was raided by police, and fought for 20 years to rectify the situation, and in fact, changed how Texas looks at licensing laws.
It's people like John and Sandra Yates, the fishermen I talk about in the first chapter of the book, who pursue their case all the way to the Supreme Court of the United States, even after they've lost their home, even after John's been sent to federal prison over Christmas when he's trying to raise two young grandchildren, and who win.
And we're still not satisfied because they only won five to four and they think they should have won even more.
It's when I see stories like that, the American people love this country.
They love their constitution and they want it to work.
And I think if you look at the long stretch of history in our country, have there been bad times before and trying times?
Absolutely.
But there have been remarkable moments when the human spirit and the courage of Americans has prevailed and triumphed time and time again.
And I just wouldn't bet against the American people.
Well, Justice Gorsuch, again, thank you so much for the time.
Folks, go out and get a copy of Overruled today.
And I really appreciate everything you're doing, sir.
Thank you, Ben.
Appreciate it.
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