Harvard law professor Mark Tushnet and others have sought to discredit Gorsuch’s latest dissent and my research at the same time. Their attacks are off-base.
Ever since Neil Gorsuch took his place on the Supreme Court bench, he has generated controversy with his contention that, as he put it in 2016, the administrative state “poses a grave threat to our values of personal liberty.” Justice Gorsuch’s overarching concern is delegation, the unconstitutional assignment by Congress to the executive branch of the job of actually writing laws. He includes in his “values” religious observance. Fans of larger government know that appeals to personal liberty resonate with Americans, religious or not, and will go to disconcerting lengths to hinder Gorsuch when he makes the liberty argument.
The reaction to Gorsuch’s dissent in a recent case, Gundy v. United States, is proving no exception. A 5–3 majority backed a federal agency’s right to determine who must register as a sex offender. Leading the dissent in Gundy, Gorsuch again spotlighted delegation: “The constitution promises that only the people’s elected representatives may adopt new federal laws restricting liberty.”
As one example of intrusion by the unelected, Gorsuch dug up a Great Depression case involving an agency that operated close to nine decades back: the National Recovery Administration, the centerpiece of President Franklin Roosevelt’s New Deal. On the spurious reasoning that an executive-branch office could through enforcement of new industry codes make the economy grow again, Roosevelt approved voluminous NRA codes that did the opposite of promote growth, tying down industry. In the case, A.L.A. Schechter Poultry v. United States, the Justice Department charged the Schechter brothers, kosher wholesale butchers in Brooklyn, with 60 violations of an NRA poultry code.
In 1935, the Supreme Court found unanimously for the butchers and slew their would-be master, the NRA. The NRA, the justices held, violated the Constitution’s commerce clause and its Article One constraints on delegation. The justices also went out of their way to make it clear that the government’s case abused common sense. Why should a customer not pick his chicken? Justice Benjamin Cardozo, relishing a poultry pun, declared the NRA must go, “bone and sinew,” and called the case an example of “delegation running riot.” Describing the tensions between the Schechters and the federal government in his Gundy dissent, Gorsuch cited the treatment of the case from The Forgotten Man, my history of the period. He noted that the Justice Department singled out the Schechters, and that “kosher butchers such as the Schechters had a hard time following these [NRA] rules.”
These last contentions, with their implication that giant federal administrative regimes can be especially tough on community and faith, were enough to drive Gorsuch critics to the edge. Mark Tushnet, a law professor at Harvard, sought to shame the justice by alleging that he’d allowed himself to be misled by me, and that the New Deal did not burden the Schechters in their work as kosher butchers. Gorsuch and I operated in a system of “epistemic closure” and did not belong to the “epistemic community” of historians, Professor Tushnet complained. He allowed that he knew The Forgotten Man’s account was wrong because he’d looked me up on Wikipedia. Since I had no Ph.D., whereas he himself consulted an unnamed academic expert on Jewish observance, he also made a point of noting that he’d read the case, implying that Gorsuch and I had not, and that Gorsuch was a gullible fool.
Tushnet fastened on an NRA poultry-code rule called “straight killing,” which required the butchers at live-poultry markets to ban customers from selecting individual chickens to slaughter. Under the rule, a butcher had to grab the chicken nearest his hand from the coop, assembly-line style, unless the customer asked for all or half of the chickens in the coop. Tushnet argued that I’d said “straight killing” conflicted with Jewish law, and that I’d erred:
Shlaes writes that “to suggest . . . that Schechter chickens were unfit was . . . to suggest that their kosher slaughterhouse was not really kosher,” because, she suggests, under Jewish law “customers . . . had the right to choose their birds, and this in turn ensured that everyone involved had a chance to determine whether the product was as healthy as possible.”
This error, Tushnet suggested, proves The Forgotten Man unprofessional. “The journalist in Shlaes,” he wrote, pulling guild rank, “appears to have led her to make up a good story — and Justice Gorsuch, a participant in her epistemic community, rather than in the epistemic community of historians, found the story credible enough to hint at it in his opinion.” (Other professors have piled on after Tushnet. I am disappointed to see Sanford Levinson, who writes that “I am not confident that I would assign the opinions of any of the current justices to students as sources of truly reliable information about controverted matters of history or philosophy,” among them.)
In his effort to build a straw chicken to attack, Tushnet gets the facts wrong. He suggests I’m a libertarian; I’m actually a classical liberal who believes in markets and some wars. He suggests that The Forgotten Man claimed “straight killing” conflicted with Jewish law; it actually claimed “straight killing” conflicted with the logic of consumer choice that underpins our market economy, a logic we respect deeply today. (Who would go to Starbucks if Starbucks served lattes as Henry Ford served Model T’s, off an assembly line and in only one format?) The economic efficiency of “straight killing” was one of those contentions that revealed the absurdity of the New Deal.
The “straight killing” rule did strain adherence to Kashruth, a Jewish dietary regime that blends custom and law, and this seems to be the source of Tushnet’s confusion. He appears to be laboring under the mistaken assumption that Jewish culture is governed by something resembling a uniform code. There is no Supreme Court of Judaism, no single book comprising the whole of Judaic law. Some Jewish law is written in the Bible. Some is imparted via later commentaries. And some is not law at all, but largely unwritten custom, which varies considerably from region to region and may be enforced as stringently as law in some Jewish communities. An action that one rabbi allows, another rabbi might stigmatize. The onus is on the congregant to demonstrate his right to stay in the rabbi’s community through rigorous observance. For any kosher butcher to slaughter animals in a fashion that the local rabbi rates inconsistent with law or custom is for the butcher to risk his livelihood.
That the Orthodox custom of picking a live animal to be slaughtered, Tushnet’s emphasis, prevailed in New Deal-era New York is evident in the lower-court testimony from Schechter Poultry. One of the prosecutors asked a witness to affirm that Orthodox Jews insisted on special selection from live poultry. “Absolutely correct,” the witness replied. Could not one slightly alter the custom, and let customers’ inspection of a bird be conducted postmortem? One could, said the witness, though “they wouldn’t eat it anyhow.” New York’s Orthodox Jews demanded to pick a live chicken themselves, or rely on someone they trusted to do so.
“In other words,” the government asked of another witness, the customers “have a right to reject chickens or not to buy certain chickens if they so desire?” “That is right,” the witness said. As the witness testified, “the customer went in and handled each bird himself and picked out just what he wanted.” The assembly line of “straight killing” forced a bitter choice upon the butcher: Choose to offend a prosecutor who could put him in jail or offend his community and risk being shunned.
Tushnet’s contention that the Schechters were not singled out may also be questioned. Several years before the high court heard Schechter, the Schechters caught the eye of Justice Department lawyer Walter Lyman Rice. Rice had successfully prosecuted two men in the poultry trade for racketeering and had summoned for testimony Joseph Schechter, one of the Schechter brothers, as a witness in the case. He next prosecuted the case against the Schechters, choosing to make them the target of the first felony prosecution of NRA-code violators. When an appeals court judge strengthened the government’s case by siding with the government against the Schechters, the NRA chief Donald Richberg crowed, calling the ruling “the most important decision on NRA that has ever been handed down.” A columnist close to the Roosevelts, Drew Pearson, stated that for the government Schechter was a “test case.” Both Pearson and the prosecutors found it convenient to work the ethnic angle for all it was worth. Pearson wrote of the Schechters’ “hawk-nosed Jewish lawyer” and described the Schechters’ businesses as “smelly chicken companies” operating amid “filth, blood and chicken feathers.”
Abusive delegation occurs in all kinds of situations having little to do with religion. Justice Gorsuch likely cited the Schechter case principally because it is one of the strongest anti-delegation rulings the Supreme Court has ever issued. But Schechter also reminds us laymen of something else: When the administrative state expands, it doesn’t do so into a void. It enters a space already occupied by other authorities — Congress, a household, a business owner, a town, a faith group. At the very least, these authorities warrant our respect. To understand this, however, you have to step outside of your epistemic community.