Neil Gorsuch Has No One to Blame But Himself

There are plenty of reasons to wonder why a sitting Supreme Court justice would choose to co-author a book called Over Ruled arguing that the US has too many laws. But the strangest aspect of Neil Gorsuch’s new volume is that it rests on a contradiction. The problem that most bothers Gorsuch is prosecutors using laws to charge people with crimes in ways that the laws’ authors never intended — and that is almost entirely the product of textualism, Gorsuch’s favorite method of interpreting statutes.

Textualism is a legal theory that says laws should be interpreted according to their words, not according to their common-sense purpose. For an example, consider the story behind the 2015 Supreme Court case of Yates v. United States, which Over Ruled discusses extensively in its first chapter. Yates, a commercial fisherman, was criminally charged with catching undersized fish in the Gulf of Mexico, then destroying the evidence by throwing those fish away. A federal jury convicted Yates on two separate charges. One was unproblematic: destroying property to prevent seizure by federal agents. Yates had no basis to challenge this conviction, and he didn’t.