Justice Gorsuch and Natural Law

By: Katherine Holcombe

Before taking office, Supreme Court justices take an oath in support of the Constitution, stating in part to “bear true faith and allegiance to the same… without any mental reservation or purpose of evasion.”[1]  Nevertheless, on some occasions, the Supreme Court has engaged in analysis that references natural law, a notion that recognizes a rule of value anterior or superior to man-made law.[2]  Many seminal cases of the Supreme Court that recognize important inalienable rights include references to natural law as a basis for these rights, such as Griswold v. Connecticut, which struck down a state anti-contraceptive law on the basis of an inherent right to privacy.[3]  In his dissent in Griswold, Justice Black wrote “I cannot rely on the due process clause or the Ninth Amendment or any mysterious and uncertain natural law concept… based on subjective considerations of ‘natural justice.’”[4]

Justice Black’s dissent in Griswold is a call for interpreting the Constitution’s “plain meaning,” or originalism.[5]  The late Justice Scalia – who Gorsuch is frequently compared to as ideologically similar – is of course famously associated with originalism, and resisted the creation of rights not explicitly found within the Constitution in a similar manner to Justice Black.[6]  In this regard, Gorsuch appears to be likeminded, but with a slightly broader philosophical gloss on the meaning encompassed in the Constitution.[7]  A look at Justice Gorsuch’s 2006 doctoral thesis, The Future of Assisted Suicide and Euthanasia, indicates his views on end-of-life questions are intrinsically linked to ideological commitments.[8]  Not only does he reference the “inviolability-of-human-life,” which has wider implications than physician assisted suicide, but also to a “moral imperative.”[9]  Further, Justice Gorsuch posits that the inviolability of life is the basis for “our entire political system,” reflected in our country’s founding documents, particularly the Declaration of Independence and the Constitution’s “self-evident human rights and truths.”[10]  Such a position reflects Justice Gorsuch’s philosophical gloss of natural law on an originalist reading of the Constitution.[11]

However, the fact that Justice Gorsuch is frequently associated with natural law reveals how the term can have different meanings.  In Griswold, a belief that an inherent “natural” right to privacy was an expansive rights decision.[12]  Similarly, concepts of natural law informed the idea of substantive due process afforded to rights created in the Civil Rights Era that were so inviolable that they could not be taken away by the state.[13]  But Gorsuch’s application of natural law within his jurisprudence is rights reducing.  For instance, he has ruled against a transgender woman barred by her employer from using the women’s restroom.[14]  When Utah’s Governor was blocked from withholding federal funding for Planned Parenthood Gorsuch dissented.[15]  Additionally, the Federalist Society, Heritage Foundation, and Judicial Crises Network have all backed Gorsuch, indicating his brand of natural law is shaped by conservative principles.[16]

If natural law gives effect to rights we see as fundamental – or perhaps moral – this would explain why natural law can be both expansive or reductive.  Advocates of natural law assert that it is the barometer against which man made law should be measured, as it encompasses inviolable, fundamental rights inherent to being human.[17]  Such a view also posits that a judge is obligated to overturn or declare invalid laws that abridge “natural” rights.[18]  Justice Gorsuch’s “moral imperative” indicates his views on what rights are fundamental, particularly in regard to right to life issues, will weigh heavily in his opinion on recognizing or curtailing rights in this domain.

 


[1] See 5 U.S. Code § 331 – Oath of Office.

[2] See Paul Moreno, The U.S. Supreme Court and Natural Law, Witherspoon Institute, 2011, at 1.

[3] Id.; see also Griswold v. Connecticut, 381 U.S. 479 (1965).

[4] See Griswold, at 525.

[5] See id.

[6] Ariane de Vogue, What Neil Gorsuch Learned from Kennedy, Scalia, and Thomas, CNN, Supreme Court Reporter, Mar. 20, 2017, http://www.cnn.com/2017/03/19/politics/gorsuch-kennedy-scalia-thomas/.

[7] Two Questions Senators Should Ask Neil Gorsuch About Natural Law, Economist (Mar. 20, 2017), http://www.economist.com/blogs/democracyinamerica/2017/03/moral-hazard.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] See Jill Lepore, To Have and To Hold, The New Yorker (May 25, 2015), http://www.newyorker.com/magazine/2015/05/25/to-have-and-to-hold.

[13] See Moreno, supra note 2 at 2.

[14] James Downie, Yes, Democrats Should Filibuster Neil Gorsuch. His Record Shows Why., Washington Post (Mar. 23, 2017), https://www.washingtonpost.com/blogs/post-partisan/wp/2017/03/23/yes-democrats-should-filibuster-gorsuch-his-record-shows-why/?utm_term=.e8634c17b6ac.

[15] See id.

[16] See id.

[17] Samuel Gregg, Neil Gorsuch, Natural Law, and the Limits of Judicial Power, Witherspoon Institute (Mar. 15, 2017), http://www.thepublicdiscourse.com/2017/03/18766/.

[18] See id.