Neil Gorsuch: A different kind of conservatism

Confirmation hearings for U.S. 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 past week, Neil Gorsuch, President Donald Trump's pick for the court, was especially tight-lipped. Senators elicited only glimmers of what makes the 49-year-old judge with a decade on the 10th Circuit Court of Appeals most interesting, or most worrisome: his affinity for a family of legal theories called “natural law.”

Though Trump promotes his nominee as drawn from the mold of Justice Antonin Scalia, the conservative jurist Gorsuch was tapped to replace, he represents a stark departure from a central feature of Scalia's jurisprudence.

Scalia saw the Constitution as “a practical and pragmatic charter of government” that neither requires nor permits “philosophizing.” 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, Gorsuch seems more ready to let his philosophical judgments out. Tapping into a tradition that reaches back to Thomas Aquinas and Aristotle, natural law asserts that some things are objectively good in themselves and therefore should serve as lodestars for individuals and societies. John Finnis, Gorsuch's dissertation adviser at Oxford University 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 Tuesday, Gorsuch deflected inquiries into his old adviser's positions on issues such as 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, 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 that 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 Sen. Lindsey Graham, R.-S.C., adding that “(the parties to the case) deserve better than that, (and) the law demands more than that.”

At that time, Gorsuch emphasized that his writings “have been largely in defense of existing law” and were “consistent with the Supreme Court's decisions in this area and existing law in most places.”

In “The Future of Assisted Suicide and Euthanasia,” Gorsuch presents 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 writes that judges must “strive … to apply the law as it is,” not as they would like it to be, Gorsuch's natural-law lens is visible too.

The first sign of a link between Gorsuch's “inviolability of human life” view and his jurisprudence comes in his book's ninth chapter, in which 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 honor “out of respect for their innate value,” Gorsuch writes. Treating human life as inviolable is the premise of “our entire political system,” he adds, and both the Declaration of Independence and the Constitution reflect the founders' belief in “self-evident human rights and truths.”

Next Gorsuch surveyed rival perspectives on the sanctity of life and 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,” he writes. Even a small degree of arbitrariness “is simply not acceptable” in “policy decisions (involving) who is and is not treated as fully human.”

Gorsuch concludes 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.”

Gorsuch discusses one example, Oregon's Death With Dignity Act, and suggests, 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 Gorsuch's philosophical opposition to assisted suicide - now at odds with the law in California, Colorado, Montana, Oregon, Vermont and Washington - in fact would influence his judgment if these policies ever came before him.

It also hints that Gorsuch might be skeptical of laws allowing abortion and could - in line with 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 anathema to the man who spent three decades in the seat to which Gorsuch aspires. Throughout his career Scalia amply criticized liberal justices who saw the constitution as a “living” document animated by principles such as autonomy or human dignity. He likened the justification for Justice Anthony Kennedy's same-sex-marriage opinion in 2015 to “the mystical aphorisms of the fortune cookie.” Scalia would be ill at ease with Gorsuch's natural-law jurisprudence as well, even if its implications more closely match his conservative views.

Given the slim Republican majority in the Senate, the confirmation of Trump's first Supreme Court pick is all but assured. The Senate's apparent lack of interest in Gorsuch's scholarship means that America is soon likely to have a natural lawyer as its ninth justice - with little sense of what that would entail.

From the Economist magazine.