When people these days argue about the Supreme Court and how it shoould interpret the Constitution, it's over whether that document should be set in stone — some form of originalism or textualism — or considered a living instrument that change as society evolves. That's an interesting debate, but there's an equally important question that seldom gets attention: What role should morality play in the law? What should a Supreme Court justice do when confronting a clearly unjust law that offends the moral order as the justice understands it?
Not much, probably, in the view of justics like Antonin and Clarence Thomas. The law is the law. The law is either constitutional or unconstitutional. Period. As Chief Justic John Robers put it during his confirmation hearings, likened judges to umpires whose “job [is] to call balls and strikes, and not to pitch or bat.”
Neil Gorsuch would disagree. Yesterday, I linked to and briefly commented on an article that talked about the fact that he is a disciple of the natural law theorist John Finnis. It's worth talking about in a little more detail, and I highly recommend reading the whole thing for a heads-up on how Gorsuch would bring a very different perspective to the court.
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:
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.
Under the"moral filter" doctrine, a judge should invalidate a gravely unjust law — one permitting slavery, for example by invoking a “higher law,” not because the judge should care more about morality than about existing law. Rather, 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.
Those embracing the "moral reading" view, on the other hand, aren't so much concerned with condemning gravely unjust laws as they are 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.
In his writings, Gorsuch has embraced only the moral reading view, but, as the article's author notes, "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.
Now, this is not treating the Consitution as a "living document" that can be changed to suit the whims of the moment. But neither is it "The law is the law, damn it, and the Constituion means what it means, period" originalism. It's a view that acknowledges an obvious truth that too many of us ignore: The law is our feeble attempt to order our lives to a moral code. That view carries the same dangers as the view that the bedrock principles of the founders might not be suitable today. What is seen as moral today (gay marriage, say) was not seen as moral yesterday. What is seen as moral today (eating meat, say) might not be considered moral tomorrow. Justices who use their own moral compasses to dictate the morality of the law to the rest of us might or might not be taking us down the right path.