It is the gist of much Neil Gorsuch coverage that he is a brilliant jurist with one large weakness: being firmly anti-choice. Exhibit A is his book, “The Future of Assisted Suicide and Euthanasia,” in which he scandalously defends the “idea that all human beings are intrinsically valuable.”
“The intentional taking of human life by private persons is always wrong,” he continues, along the same shocking lines.
Gorsuch’s detractors see in such statements “an existential threat to legal abortion in the United States” – though nowhere in the book does the judge define “human life” to include developing life in the womb.
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Gorsuch’s allies will defend him by saying that the author of the book has no relationship to the judge who punches in at the text-parsing factory. The work of an originalist and textualist is never undone. It consists mainly of consulting the dictionary to find the plain meaning of words, not applying the principles of moral philosophy. It would not matter if Gorsuch were a utilitarian or a eugenicist; his only duty is to the obvious meaning of laws written by others.
The argument is both useful and absurd. Of course the most basic moral beliefs of a judge matter, in the sense that moral convictions (and upbringing and experience) determine a worldview that none of us can escape. All of us make ethical judgments on the purposes of law and morality that pervade our approach to both.
The largest changes of our time – with massive legal consequences – have been in the realm of moral ideas. Legal liberals quote Justice Anthony Kennedy more like scripture than precedent: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
The liberalism of Eleanor Roosevelt – a commitment to universal human rights – has largely been replaced by Kennedy’s elevation of personal autonomy. The United Nations’ Universal Declaration of Human Rights (which Roosevelt helped shape) honored “the inherent dignity and … the equal and inalienable rights of all members of the human family.” In the aftermath of World War II, her emphasis was on defending the vulnerable. Kennedy’s version of liberty is the right of competent adults – by definition, the strongest members of the “human family” – to define and pursue their own universal mystery.
Is there really no legal consequence in choosing between these two liberal visions of the good? Gorsuch’s fine book is a sustained explanation of how and why our most basic conceptions of liberty matter so much. A legal theory that elevates personal choice, even in matters of life and death, is claiming a great deal – even more than many of its advocates wish to admit. If a suffering cancer patient can rightfully ask a doctor to end his or her life, why not a depressed 21-year-old? Or a widow in despair? If autonomy is the rule, there can be no limit, save individual will.
On the other hand, if only the hopelessly ill are allowed to receive a doctor’s help in killing themselves, a utilitarian social message is unavoidably sent. The general right to life, in this view, is overridden only in cases where people become burdens on themselves and others. How does this not become a social message to the ill and infirm they have a duty to depart? This role also transforms the medical community – making it the means by which a society disposes of life no longer worth living.
There are, as Gorsuch notes, unbelievably difficult choices in the shadow world between life and death. This requires both sensitivity and legal space. But the combination of a personal ethic of absolute autonomy and a social ethic of utilitarianism leads toward some scary territory. The right to die quickly becomes a social duty. And people who should be singled out for particular, loving care are encouraged to become instruments of their own death, with quick and convenient help. This is not a slippery slope but a logical consequence.
There should be one bright, legal and social line here: that, as Gorsuch wrote, “all human beings are intrinsically valuable,” including those who have lost, or never gained, the ability to determine their own concept of existence.
I want a Supreme Court nominee for whom the promises of the Declaration of Independence are the moral and legal context for reading the Constitution. A nominee who believes – even when all human care fails – that America’s basic law still stands for the weak and vulnerable. There is no greater good.
Michael Gerson can be contacted at firstname.lastname@example.org.