Neil Gorsuch Legal Philosophy

But if the moral view of natural law is correct—and I agree with Gorsuch and Dworkin that it is—then it`s time to abandon Roberts` analogy. It`s also time to stop pretending that Supreme Court justices can decide difficult cases without referring to their views on what a coherent and defensible American moral philosophy looks like. The sooner we stop pretending, the sooner we can deal with the fact that the crucial disagreements on the Supreme Court are more like the conservative-liberal disagreements between a Gorsuch and a Dworkin than the “neutral arbitrator” and “activist judge” disagreements we`ll likely hear about this week. Gorsuch emphasized the important and long-standing role of the courts as impartial arbiters in disputes. “I`ve been a lawyer and judge for a long time,” he said. “As a lawyer, I just wanted a fair shake for my client, and I felt like I was following fair rules, known in advance and followed. I have a great deal of respect for members of the judiciary. They became both friends and heroes. In 2004, Gorsuch received a doctorate in philosophy of law from the University of Oxford, where he researched assisted suicide and euthanasia as a PhD candidate at University College Oxford. [5] [16] [23] A Marshall Scholarship enabled him to study at Oxford in 1992/93, where he was supervised by natural law philosopher John Finnis of University College Oxford. His dissertation was also supervised by Professor Timothy Endicott of Balliol College, Oxford.[35] In 1996, Gorsuch married Louise, an Englishwoman and riding master of the Oxford riding team, whom he met while there.[5] [18] [36] Gorsuch then explains bluntly – and in my view completely false – that physician-assisted suicide, unlike stopping life-sustaining care, always involves a physician who intends to harm his or her patient. He concludes that courts can therefore rely on Finnis` moral theory to strike down laws permitting assisted suicide, even if the “conventional legal material” never explicitly refers to this theory or its subtleties. As Gorsuch puts it, “courts and legislators might consider a less frequently expressed perspective on the issue of assisted suicide and euthanasia, based on the recognition of human life as a fundamental good” that must never be intentionally violated.

While this conclusion is shaped by the humility of a scholar, the result of his book is clear: courts should place physician-assisted suicide in the same legal category as any other premeditated murder. Once Gorsuch`s true legal philosophy is opened, as it should, here are some other questions senators might ask him: Judge Neil Gorsuch`s legal record and philosophy have been dismantled since President Donald Trump named the 49-year-old Colorado native in January. Some questions about his position on the burning issues remain, but other aspects of Gorsuch`s approach to the law are clear. Dworkin, who died in 2013, is an interesting comparison to Gorsuch and Thomas because he often disagreed with the conservative views that many associate with natural rights lawyers. Although he almost always sided with the liberal wing of the U.S. Supreme Court, he agreed that the Constitution and subsequent laws and decisions led to a coherent vision of a just state, and that it was up to judges not only to interpret individual laws, but also to reflect on the legal implications of this more comprehensive picture. Gorsuch was born in Denver, Colorado and spent his youth in Denver, Colorado, then lived in Bethesda, Maryland while attending Georgetown Preparatory School. He received a Bachelor of Arts degree from Columbia University, a J.D.

from Harvard University, and, after 15 years as a lawyer, a Doctor of Philosophy degree from Oxford University, which he attended as a Marshall Scholar. His doctoral dissertation was on the morality of assisted suicide under the supervision of Catholic legal philosopher John Finnis. [5] [6] When theories of natural law emerged during Clarence Thomas` confirmation hearings, liberal legal philosopher Ronald Dworkin criticized the way senators treated them. Senators, he said, falsely urged Thomas to embrace the ideal of the neutral judge, and Thomas eagerly acquiesced, denying his earlier support for a religion-based view of natural law. (It is doubtful that Thomas` interest in natural law was as great as Gorsuch`s.) In 2020, Gorsuch drafted the majority opinion in the combined cases Bostock v. Clayton County, Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc.

v. Equal Employment Opportunity Commission, which rules that companies cannot discriminate against LGBTQ people. He argued that discrimination on the basis of sexual orientation was unlawful discrimination on the basis of sex because the employer would discriminate “on the basis of characteristics or actions that it would not have questioned in members of another sex.” [117] The verdict was 6-3, with Gorsuch supported by Chief Justice Roberts and the Court`s four Democratic commissioners. [118] [119] Justices Thomas, Alito and Kavanaugh disagreed with the decision, arguing that it unduly extended the Civil Rights Act to sexual orientation and gender identity. [120] Gorsuch served on the 10th Court of Appeals from 2006 to 2017, where he was appointed by President George W. Bush when he was appointed to the Supreme Court by President Donald J. Trump. Prior to joining private practice, he was a trainee lawyer for Justice David B. Sentelle in the United States. Court of Appeals for the District of Columbia Circuit, and later for Associate Justices Byron R. White and Anthony M. Kennedy of the U.S.

Supreme Court. From 2005 to 2006, he served as Senior Assistant Deputy Attorney General at the U.S. Department of Justice. Let us now consider the other point of view that a natural law theorist might adopt, the so-called moral point of view. Moral reading is not so much about condemning very unjust laws, but about helping judges interpret the complex, even hodgepodgedge, of laws they are supposed to apply. From a moral point of view, judges should not aspire to be literalists in terms of laws or legal texts. Instead, they should sometimes step back and try to build the body of coherent moral principles that best justifies the hodgepodge of existing laws in their society. Then, when the written law is silent, vague or contradictory, judges should deduce from which moral principles should it be, what the law is. Judges offer, so to speak, their own reading of the moral principles that provide the best underlying justification for existing laws.

Gorsuch commends Finnis for arguing that some very subtle distinctions in the law—distinctions that some perceive as legalistic and arbitrary—are nonetheless morally important and relevant to a sound moral interpretation of the law. His main example – and Gorsuch`s favorite philosophical theme – is the distinction between intent to harm and mere foresight. For example, while an air bomber in a just war would be morally reprehensible for deliberately attacking civilians, many philosophers allow it to legitimately kill civilians if it is an intended but unintended side effect of a tactically necessary bombing of a munitions factory. Gorsuch, a federal judge on the 10th Court of Appeals, is a textualist who interprets laws narrowly. He also subscribed to the legal philosophy of “originalism” popularized by the late Justice Antonin Scalia (whom Gorsuch would replace on the Court), according to which the Constitution must be interpreted on the basis of the beliefs of the authors at the time of its defeat. This is sometimes called the “doctrine of double effect”: if the good effect sought (the destruction of a weapons factory) is a desirable goal, then the bad side effects (civil death) are morally tolerable as long as the good sufficiently outweighs the bad and as long as the bad is completely unintentional. As Gorsuch notes, the distinction between intent and foresight, which is at the heart of the doctrine of double action, also seems to support much of the jurisprudence dealing with crime, tort, and legal liability. To understand the moral filter point of view, consider a society with a grossly unjust law – a law that allows slavery, for example. And suppose that 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 strike down the pro-slavery law by invoking a “higher law.” However, this is not because the judge should be more concerned with morality than with the applicable law.