Gorsuch’s “Natural Law” Philosophy Isn't Scalia’s Originalism

Gorsuch’s “Natural Law” Philosophy Isn't Scalia’s Originalism
AP Photo/Susan Walsh

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.

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