The Indian Express (Delhi Edition)
Neil Gorsuch: the natural
Neil Gorsuch’s conservatism is different from Antonin Scalia’s
CONFIRMATION HEARINGS FOR Supreme Court justices have become frustrating affairs. Senators pontificate and probe while nominees utter bromides and dodge questions for hours on end. In his stint before the Judiciary Committee this week, Neil Gorsuch, Donald Trump’s pick for the court, has been especially tight-lipped. Senators have elicited only glimmers of what makes the 49-yearold judge with a decade on the Tenth Circuit Court of Appeals most interesting, or most worrisome: his affinity for a family of legal theories called “natural law”. Though Mr Trump promotes his nominee as drawn from the mould of Antonin Scalia, the conservative jurist Mr Gorsuch was tapped to replace, he represents a stark departure from a central feature of Mr Scalia’s jurisprudence.
Mr Scalia saw the constitution as “a practical and pragmatic charter of government” that neither requires nor permits “philosophising”. In a right-to-die case in 1990, he quipped that the nine justices were no better suited to make fine distinctions on the morality of life support than “nine people picked at random from the Kansas City telephone directory”. By contrast, Mr Gorsuch seems more ready to let his philosophical judgments out. Tapping into a tradition that reaches back to Thomas Aquinas and Aristotle, natural law says that some things are objectively good in themselves and should therefore serve as lodestars for individuals and societies. John Finnis, Mr Gorsuch’s dissertation adviser at Oxford and one of the world’s foremost natural-law theorists, lists these goods as knowledge, aesthetic appreciation, play, friendship, practical reasonableness, religion and—most notably—life.
In the second day of his hearings on March 21st, Mr Gorsuch deflected inquiries into his old adviser’s positions on issues like abortion and gay rights. “I’m not here to answer for…professor Finnis,” he said. “I’d ask you respectfully to look at my credentials and my record.” Such a look is revealing. In his doctoral work and book, Mr Gorsuch drew on the idea that “human life is fundamentally and inherently valuable” to argue against assisted suicide and euthanasia. When he first appeared before the Senate in 2006, he pledged he would keep his philosophical positions out of his judgments. “[P]ersonal views…have nothing to do with the case before me in any case”, he told Senator Lindsey Graham. The parties “deserve better than that”, he added, and “the law demands more than that.” Mr Gorsuch then emphasised that his writings “have been largely in defence of existing law” and are “consistent with the Supreme Court’s decisions in this area and existing law in most places.”
In The Future of Assisted Suicide and Euthanasia, written in 2006, Mr Gorsuch presented the ethics of end-of-life questions as fundamental to his sense of how the courts should handle lawsuits arising out of them. Though he has said that judges must “strive…to apply the law as it is”, not as they would like it to be, Mr Gorsuch’s natural-law lens is visible too. The first sign of a link between Mr Gorsuch’s “inviolability-of-human-life” view and his jurisprudence comes in his book’s ninth chapter, where he traces the roots of the idea that there is a moral imperative to respect “basic goods”. The idea is apparent “from life’s experiences” in which people deserve honour “out of respect for their innate value”, Mr Gorsuch wrote. Treating human life as inviolable is the premise of “our entire political system” and both the Declaration of Independence and constitution reflect the founders’ belief in “self-evident human rights and truths”.
Next, Mr Gorsuch surveyed rival perspectives on the sanctity of life and he found them all wanting: “[A]ny attempt to draw lines between different sorts of lives…seems almost inevitably to become…an arbitrary and subjective enterprise.” Even a small degree of arbitrariness “is simply not acceptable” in “policy decisions” involving “who is and is not treated as fully human”. Mr Gorsuch concluded that when judges review laws permitting terminally ill people to enlist the help of doctors in their deaths, they should keep in mind that such acts “are categorically wrong”.
Mr Gorsuch discussed one example—the Oregon Death With Dignity Act—and suggested, contrary to the Supreme Court’s approach, that judges should subject such laws to heightened scrutiny because they may threaten the right to life of terminally ill individuals. This suggests that Mr Gorsuch’s philosophical opposition to assisted suicide— now at odds with the law in six states (California, Colorado, Montana, Oregon, Vermont and Washington)—would in fact influence his judgment if these policies ever came before him. It also hints that Mr Gorsuch might be sceptical of laws allowing abortion and could—in line with Mr Trump’s oft-repeated wish—reconsider Roe v Wade, the nearly 45-year-old precedent protecting women’s reproductive choice.
Judicial adventures in metaphysics were anathematothemanwhospentthreedecades in the seat to which Mr Gorsuch aspires. Throughout his career, Scalia amply criticised liberal justices who saw the constitution as a “living”documentanimatedbyprinciplessuch as autonomy or human dignity. (He likened thejustificationforanthonykennedy’ssamesex marriage opinion in 2015 to “the mystical aphorismsofthefortunecookie”.)scaliawould beillateasewithmrgorsuch’snatural-lawjurisprudence as well, even if its implications more closely match his conservative views.
Given the slim Republican majority in the Senate, the confirmation of Mr Trump’s first Supreme Court pick is all but assured. The Senate’s apparent lack of interest in Mr Gorsuch’s scholarship means America is likely to soonhaveanaturallawyerasitsninthjustice— with little sense of what that would entail.
Given the slim Republican majority in the Senate, the confirmation of Donald Trump’s first Supreme Court pick is all but assured. The Senate’s apparent lack of interest in Neil Gorsuch’s scholarship means America is likely to soon have a natural lawyer as its ninth justice—with little sense of what that would entail.