Later this month, the Senate Judiciary Committee convenes hearings on the nomination of Judge Neil Gorsuch to replace Antonin Scalia on the Supreme Court. Although the Committee will have a lot of legitimate issues to consider, some outsiders are trying to interest it in two unusual topics: natural law, and the writings of a professor named John Finnis. These topics are distractions. The committee’s main business is to see whether Judge Gorsuch is qualified to apply the law impartially as a judge. And if the committee does decide to explore natural law or Finnis’s writings, those sources will point the committee back to its main business.
Finnis is now a professor emeritus at Oxford and a professor at Notre Dame Law School. After clerking at the Supreme Court, Gorsuch earned a Ph.D. at Oxford, and Finnis supervised Gorsuch’s dissertation there. In the last few weeks, some court-watchers have suggested that Finnis’s political views provide clues about how Gorsuch will behave as a justice. George Will hopes that Gorsuch’s studies under Finnis will help him “correct” some of Scalia’s views on the Constitution. (Scalia denied that the Constitution explicitly recognizes natural law or protects natural rights.) Several bloggers and news articles have noted that Finnis opposes abortion and non-conjugal and/or contracepted sex. Some hope, and more are alarmed, that Finnis’s views on those subjects may have rubbed off on Gorsuch.
It speaks well of Gorsuch that he studied at Oxford, which has an unparalleled faculty in legal philosophy. It also speaks well of Gorsuch that he studied with Finnis. Finnis is the most accomplished legal scholar writing on natural law in the English-speaking world, and even scholars who disagree with his academic or political views, such as progressive University of Chicago professor Martha Nussbaum, acknowledge that he is a “very fine moral philosopher.”
More fundamentally, though, the suggestions being made about Finnis and natural law are confused about the judiciary committee’s job. The suggestions imply that judges vote on cases before them as members of Congress vote on bills—by what they think of a given bill on the merits. Judges shouldn’t vote that way; they should figure out what legal sources control and apply those sources impartially. If the committee wants to explore how the natural law or Professor Finnis relate to being a Supreme Court Justice, it should ask what both have to say about adjudication—not any hot-button voting issue.
And here, traditional natural law teachings reinforce what common sense already suggests. “Natural law” is a way of saying that there are objective standards for right and wrong guiding politics. But natural law principles don’t supply cookie-cutter solutions to political problems. Reasonable people often disagree about how general objective standards apply to specific problems. To resolve such disagreements, natural law justifies elections and constitutional government—but it also requires the government’s officers to follow the Constitution and the laws made pursuant to it.
This basic lesson is now black-letter American constitutional law. In the 1798 Supreme Court case Calder v. Bull, Justice Samuel Chase suggested that federal judges might be able to declare a state law “contrary to the great first principles of the social compact.” In a separate opinion, however, Justice James Iredell refuted Chase. Judges citing natural law alone, Iredell argued, could only claim “that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”
This lesson is also a basic teaching of Professor Finnis. In his best-known book, Natural Law and Natural Rights, Finnis explained that the “moral norms” that constitute the natural law “justify (a) the very institution of positive law [and] (b) … separation of powers.” In a 2015 lecture, Finnis criticized many modern judges (especially European ones) for giving “judgments assuming the roles of constitution makers and legislators.”
In a tribute last year to Justice Scalia, Gorsuch wholeheartedly agreed with Scalia that, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach.” Natural law and Finnis’s writings on it just confirm what the Senate Judiciary Committee already knows. The committee’s business is to investigate whether Judge Gorsuch is dedicated to discerning and applying controlling law impartially, as he said he was in this speech.
Eric R. Claeys is a Visiting Fellow in the James Madison Program for American Ideals and Institutions, and a Professor of Law at Antonin Scalia Law School, George Mason University.
