When Antonin Scalia’s death was announced, Neil Gorsuch was on the ski slope. Checking his phone halfway down the hill, tears welled up as he read the news, he has said. According to Gorsuch, who is President Trump’s nominee to replace Scalia on the Supreme Court, Scalia was “a lion of the law” whose judicial philosophy was exactly right: A judge must apply the law as it is, and never as the judge prefers it to be.

But at the same time, Gorsuch is a disciple of the natural law theorist John Finnis, who directed the doctoral work he began at Oxford after graduating from Harvard Law School. According to the natural law tradition, we must sometimes consult our understanding of morality before we can know what the law actually is. So on this view, judges may have to appeal to their own beliefs about morality to decide on a case.

So which is it? Is Gorsuch a “neutral arbiter” in the mold of Scalia, or a “natural lawyer” in the mold of Finnis?

The answer is that Gorsuch is closer to Finnis, although you’d never know it from reading Gorsuch’s tribute to Scalia. There, he says only that while “hard cases” exist, they often become easy cases once a court renders a ruling and thereby sets a precedent for similar cases in the future. This of course sidesteps the key question of how hard cases are to be decided in the first place.

Gorsuch is much more forthcoming in his scholarship, where he has argued that judges — including Supreme Court justices — may decide difficult cases by drawing on contentious moral principles. These include his own “inviolability of life” principle.

Because he has downplayed his interest in natural law in his more public remarks, it is crucial for senators who’ll question Gorsuch to understand his judicial philosophy and the connection it draws between morality and the law.

Natural law theory, explained

The natural law approach to jurisprudence is usually contrasted with “legal positivism.” Positivism is the view that which laws exist, and what those laws say, is a purely factual matter, one that can be investigated only by looking at conventional legal materials such as the congressional record and judicial precedents.

Natural law theorists argue that there is far more to the law than that. They hold that at least in some situations, one cannot know what the law is without first engaging in philosophical inquiry about morality and the nature of right and wrong conduct. These days, natural law theorists usually embrace one or both of two views on the connection between principles of morality on the one hand, and the law as judges must apply it on the other. Following the legal philosopher Liam Murphy, I’ll call these two natural law views the moral filter view and the moral reading view.

To understand the moral filter view, consider a society with a gravely unjust law — one permitting slavery, say. And suppose this society has no other law or principle enshrined in its legal code that would condemn slavery. According to the moral filter view, a judge should invalidate the pro-slavery law by invoking a “higher law.” This is not, however, because the judge should care more about morality than she does about existing law. Rather, as Gorsuch’s adviser Finnis puts it, it is because when a true moral principle condemns a grave injustice, that moral principle itself “function[s] as a direct source of law and, in a certain sense, as already law.”

In other words, morality acts as a sort of legislative failsafe: When legislatures write horrible laws, morality steps in to rewrite them. And so when a judge strikes down a deeply unjust law by invoking a moral principle, the moral filter view allows her to say that she’s merely enforcing a more basic law that is, so to speak, already on the books.

Here is an example of the moral filter view in action. (I borrow it from Murphy.) After the reunification of Germany, a court found two former East German border guards guilty of shooting and killing a person who was trying to climb the Berlin Wall. The guards appealed the decision by arguing that when the event happened, their behavior was perfectly legal according to the laws of East Germany. In rejecting the guards’ defense, the appeals court cited a 1946 German law review article that claimed, in line with the moral filter view, that no matter what is written in the statutes, morality simply does not permit the existence of gravely unjust laws.

Now consider the other view a natural law theorist might embrace, the so-called moral reading view. The moral reading view isn’t so much concerned with condemning gravely unjust laws as it is with helping judges interpret the complex web, even mishmash, of laws they are expected to apply. According to the moral reading view, judges should not strive to be literalists about legislation or legal texts. Instead, they should sometimes step back and seek to construct the body of consistent moral principles that best justifies their society’s hodgepodge of existing laws. Then, when the law as written is silent or vague or contradictory, judges should infer what the law is from what the body of moral principles says it should be. Judges offer their own reading, so to speak, of which moral principles offer the best underlying justification for laws that are on the books.

The particular form of natural law that Gorsuch embraces

While these two natural law views are distinct, there is a sense in which adopting one means you get the other for free. This is because for any law that one wishes to label as “gravely unjust,” there is at least some moral reading of the broad edifice of US law that would condemn the law. That, after all, explains how both conservatives and liberals can each point to vague constitutional values like liberty and equality to justify very different judicial opinions. What this means is that if a judge endorses the moral reading view, she thereby gains all the moral filter she would ever need: If she thinks a law is gravely unjust, she can simply argue that the law is not consistent with (her view of) the best moral reading of existing US law as a whole.

Perhaps this two-for-one deal is why Gorsuch never discusses the moral filter view in his scholarly work. Instead, he commits himself only to the moral reading view, which he associates with Finnis, and which he uses to analyze end-of-life issues.

Gorsuch praises Finnis for arguing that certain very subtle distinctions in the law — distinctions some find legalistic and arbitrary — are nevertheless morally important and relevant to a sound moral reading of the law. His main example — and Gorsuch’s favorite philosophical topic — is the distinction between intending harm and merely foreseeing it. For example: While an aerial bomber in a just war would be morally wrong to target civilians intentionally, many philosophers allow that he can permissibly kill civilians when it is a foreseen but unintended side effect of a tactically essential bombing of a munitions factory.

This is sometimes called the “doctrine of double effect”: If the intended good effect (the destruction of a weapons factory) is a worthy aim, then the bad side effects (the civilian deaths) are morally tolerable, so long as the good sufficiently outweighs the bad, and so long as the bad is wholly unintended. As Gorsuch notes, the intention/foresight distinction that is at the heart of the doctrine of double effect also seems to buttress much jurisprudence concerned with crime, torts, and legal liability.

Gorsuch lauds Finnis for making three points regarding the intention/foresight distinction: 1) that the law in fact respects the distinction, 2) that the law is morally correct to do so, and 3) that the fact that the law is morally correct “can make a significant difference in the analysis of many legal questions.”

These propositions underlie the moral reading version of natural law theory at work in Gorsuch’s book on physician-assisted suicide. After arguing that the law as written is inconclusive, and that past precedents and leading moral theories cannot settle the assisted suicide issue, Gorsuch endorses Finnis’s theoretical defense of the intention/foresight distinction — a defense that classifies all intentional harms as categorically wrong — and claims that it offers the best moral reading of why the law punishes the murderer but not the doctor who withdraws life-sustaining treatment to fulfill a dying patient’s wishes.

Gorsuch then declares, baldly — and quite falsely, in my view — that physician-assisted suicide, as opposed to the withdrawal of life-sustaining care, always involves a doctor who intends to harm his patient. He concludes that courts may therefore rely upon Finnis’s moral theory to strike down laws permitting assisted suicide, even though “conventional legal materials” never explicitly reference that theory or its intricacies. As Gorsuch puts it, “courts and legislators may wish to consider a less frequently voiced perspective on the assisted suicide and euthanasia question, one grounded in the recognition of human life as a fundamental good” that must never be harmed intentionally. While this conclusion is tinged with a scholar’s humility, his book’s upshot is clear: Courts ought to place physician-assisted suicide in the same legal category as any other intentional homicide.

The lesson for these confirmation hearings

When natural law theories came up during Clarence Thomas’s confirmation hearings, the liberal legal philosopher Ronald Dworkin criticized senators’ handling of it. The senators, he said, mistakenly urged Thomas to embrace the ideal of the neutral judge, and Thomas eagerly obliged, disowning his past endorsement of a religiously based natural law view. (It is doubtful that Thomas’s interest in natural law was anywhere near as significant as Gorsuch’s.)

Dworkin was displeased because he — like Gorsuch and Finnis — thinks that judges have no alternative but to draw on their best moral reading when they rule on “abstract or vague or otherwise unclear laws, including the abstract clauses of the Constitution.” Dworkin wanted senators to annihilate the “myth of judicial neutrality” once and for all, and to probe Thomas’s views concerning the best moral reading of US law.

Dworkin, who died in 2013, makes for an interesting comparison with Gorsuch and Thomas, because he often disagreed with the conservative views many tend to associate with natural law advocates. While he almost always sided with the liberal wing of the US Supreme Court, he agreed that the Constitution, and subsequent laws and decisions, added up to a coherent view of a just state, and that it was up to judges not only to interpret individual laws but to think about the legal implications of that fuller picture.

This time around, senators should heed Dworkin’s advice. In questioning Gorsuch, they should get him to acknowledge what he has written, which is that in order to adjudicate the thicket of American law, judges must search for the moral principles that best justify the law as it is written, and then use moral philosophy to tease out further moral implications. In line with natural law theory, Gorsuch sees this as a way of discovering what the law already is. That, after all, is why he feels he can commend his controversial “inviolability of life” theory to the courts. He believes the theory is already there, in case law as well as the Constitution (including court decisions interpreting it).

All of this makes Gorsuch’s views about morality fair game during his confirmation hearings. And if the conservative Gorsuch and the liberal Dworkin are correct to say that judges must sometimes rely on their “best moral reading” of existing law, then no Supreme Court nominee should ever again be allowed to hide behind Scalia’s myth of judicial neutrality — as most nominees in recent decades have tried to do.

Scrutinizing the “inviolability of life” principle: just how far will Gorsuch push it, if approved?

Once Gorsuch’s true judicial philosophy is out in the open, as it should be, here are a few further questions senators might ask him:

According to your “inviolability of life” theory, which you have urged courts to invoke, it is always wrong intentionally to harm human life. You also write that “Abortion would be ruled out by the inviolability-of-life principle I intend to set forth if, but only if, a fetus is considered a human life.” Who should decide whether a fetus is considered a human life? State legislatures? Congress? Federal judges? What is your own view of the matter?

If you refuse to answer the previous question on the grounds that doing so would compromise your ruling in a future case, do you intend to recuse yourself from all cases involving physician-assisted suicide? After all, you have published a book urging courts to rely on a moral theory that, you write, would “rule out assisted suicide and euthanasia.”

According to your “inviolability of life” view, it is always wrong intentionally to harm human life. When a person with a painful terminal illness requests aid in dying, why do you conclude the requested dignified death is always a harm to that person?

You have criticized physician-assisted dying because, in your opinion, such assistance always involves “an intent to kill.” But in most cases like this, doctors may intend only to give their terminally ill patients a choice about the time and manner of their death. If a patient ultimately chooses to die naturally, the doctor still achieves her goal. Why do you conflate giving someone a choice with intending to kill them?

During his own confirmation hearings, Chief Justice John Roberts famously likened judges to umpires whose “job [is] to call balls and strikes, and not to pitch or bat.” Senators loved that analogy so much that when it came time for Justice Sonia Sotomayor’s hearings, senators invoked Roberts’s metaphor several times on the first day alone.

Yet if the moral reading view of natural law is correct — and I agree with Gorsuch and Dworkin that it is — then it is time to ditch Roberts’s analogy. It is also time to stop pretending that Supreme Court justices can decide hard cases without reference to their views about what a cohesive and defensible American moral philosophy looks like. The sooner we stop pretending, the sooner we can face up to the fact that the decisive disagreements on the Supreme Court look more like the conservative-versus-liberal disagreements between a Gorsuch and a Dworkin than they do the “neutral arbiter”-versus-“activist judge” disagreements that we are likely to hear about this week.

This does not mean that moral philosophy will now have to play a role it is not accustomed to playing in American jurisprudence. It simply means it should now play this role out in the open, instead of under the cover of a black robe.

J. Paul Kelleher is an associate professor of bioethics and philosophy at the University of Wisconsin, Madison. Find him on Twitter @kelleher_.

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