Not Even Law Office History
By 
Mark Tushnet observes that Neil Gorsuch cited Amity Shlaes’s junk history in his Gundy dissent:
Justice Gorsuch’s dissent in Gundy v. United States relies on Amity Shlaes’s book The Forgotten Man for this description of some of the facts in the Schechter cases: “Kosher butchers such as the Schechters had a hard time following these rules. Yet the government apparently singled out the Schechters as a test case.” According to Wikipedia (which on this question is accurate), Shlaes is “an American author and newspaper and magazine columnist … [who] writes about politics and economics from a US libertarian perspective.” Her description of the Schechter case is consistent with that description of her perspective, and (depending on what Justice Gorsuch had in mind when referring to the difficulties kosher butchers had) almost certainly inaccurate.
[…]
There’s more to the story about the Schechters. They weren’t a corner butcher shop, but the largest slaughterhouse in Brooklyn, processing more than 34,000 pounds of chicken in a typical week, and they earned more than $1,000,000 dollars per year (over $15.3 million in 2019 dollars). Nor were they completely honest businesspersons. They clearly did sell chickens infected with respiratory illnesses, which might have included tuberculosis. (Observing that a live chicken had a respiratory ailment was relatively easy, though determining what the illness was, was difficult. And once the chicken had been slaughtered the ultimate purchaser had no way of knowing that chicken had such an ailment.)
As an aside, the government didn’t “single out” the Schechters as a test case; government lawyers had brought cases against what they thought were much better candidates for test cases, but those cases weren’t in a good litigation posture when the Schechters lost in the lower courts and as a result could petition the Supreme Court for review. For example, the government dismissed its appeal from a lower court decision dismissing the indictment of the owner of several large sawmills (who had refused to comply with the applicable code’s wage-and-hour requirements) because the “record” — actually, only the indictment — hadn’t been framed with an eye to the non-delegation doctrine, which assumed its importance after the appeal had been filed.
In short, the journalist in Shlaes 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 in his opinion.
As the judicial war against the New Deal proceeds, this kind of thing is going to be more common. As we’ve discussed before, libertarians have tried the same approach with Wickard v. Filburn, portraying it as a case of JACK BOOTED FEDERAL THUGS punishing a poor farmer for wanting to grow some food for his family, because the actual facts and holding of the case — that a large commercial farmer could not accept lavish federal subsidies offered as part of a statutory effort to stabilize prices in interstate and international commodities markets without complying with the reasonable conditions that were attached to the subsidy — are rather less useful for libertarians.
Anyway, I can see no bad that can come from conservertarian hacks who think (or pretend to think) that Amity Shlaes is a reliable historical source reviving a bunch of long-discredited and disused doctrines to start throwing out federal laws and regulations they don’t like.