Neil Gorsuch likes ‘natural law,’ meaning he’s a right-wing activist judge. (More)
“The recognition of human life as a fundamental good”
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.
In other words, Gorsuch believes laws must be ‘interpreted’ in light of his opinions on “morality and the nature of right and wrong conduct.” Gorsuch was a student of natural law proponent John Finnis, and Kelleher illustrates Gorsuch’s theory with the issue of physician-assisted suicide:
These propositions underlie the moral reading version of natural law theory at work in Gorsuch’s book on physician-assisted suicide. After arguing that the law as written is inconclusive, and that past precedents and leading moral theories cannot settle the assisted suicide issue, Gorsuch endorses Finnis’s theoretical defense of the intention/foresight distinction – a defense that classifies all intentional harms as categorically wrong – and claims that it offers the best moral reading of why the law punishes the murderer but not the doctor who withdraws life-sustaining treatment to fulfill a dying patient’s wishes.
Gorsuch then declares, baldly – and quite falsely, in my view – that physician-assisted suicide, as opposed to the withdrawal of life-sustaining care, always involves a doctor who intends to harm his patient. He concludes that courts may therefore rely upon Finnis’s moral theory to strike down laws permitting assisted suicide, even though “conventional legal materials” never explicitly reference that theory or its intricacies. As Gorsuch puts it, “courts and legislators may wish to consider a less frequently voiced perspective on the assisted suicide and euthanasia question, one grounded in the recognition of human life as a fundamental good” that must never be harmed intentionally. While this conclusion is tinged with a scholar’s humility, his book’s upshot is clear: Courts ought to place physician-assisted suicide in the same legal category as any other intentional homicide.
So even if a state legislature decides that physician-assisted suicide is legal – that is, not murder – Gorsuch would overturn such a law and declare that physician-assisted suicide is still murder, because it violates “the recognition of human life as a fundamental good.”
“It’s not our job to answer questions like that”
Following that reasoning, you might expect that Gorsuch would side with a trucker who was fired because he refused to sit in an unheated truck in subzero temperatures while waiting for a repair vehicle. That’s the factual situation Gorsuch faced in TransAm v. Department of Labor, a Tenth Circuit Court of Appeals case. The driver, Alphonse Maddin, was driving a tractor-trailer rig for TransAm trucking in Illinois, on a sub-freezing night in January 2009, when the trailer brakes froze. Maddin could not safely drive the rig with the trailer brakes frozen, so he pulled to the side of the road and called in for help. The company said a repair person would be there soon, and to wait with the truck and trailer.
So Maddin waited, for over two hours, and indeed dozed off. He was awakened by a call from a cousin, who said Maddin sounded confused and was slurring his speech. Maddin realized that the cab heater wasn’t working, that his torso was numb, and that he couldn’t feel his feet. He called the dispatcher again, and was told to “Hang in there.”
A half-hour later, Maddin called his supervisor and said he was having trouble breathing. The supervisor told him to turn on the alternative power for the cab, although Maddin had explained repeatedly that it wasn’t working. Maddin said he was leaving to seek help, but the supervisor said not to leave the trailer. Instead, the supervisor said, Maddin could drag the trailer without brakes (and risk a fatal accident) or stay and wait for the repair person (and risk freezing to death).
Maddin unhooked from the trailer and drove away to warm up. When he returned a half-hour later, he discovered the repair person had arrived while he was gone. The repair person fixed the trailer brakes and Maddin delivered the load. A week later, he was fired for “abandoning his load while under dispatch.”
Maddin sued under the whistleblower provision of the Surface Transportation Assistance Act. That law protects truck drivers who report unsafe conditions and, ultimately, an administrative law judge found that Maddin was protected under that law. TransAm appealed, and the Tenth Circuit upheld Maddin’s claim.
But Gorsuch dissented, writing in part:
A trucker was stranded on the side of the road, late at night, in cold weather, and his trailer brakes were stuck. He called his company for help and someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option). The trucker chose None of the Above, deciding instead to unhook the trailer and drive his truck to a gas station. In response, his employer, TransAm, fired him for disobeying orders and abandoning its trailer and goods.
It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that.
Wait … what?
The same judge who would overturn a state law permitting physician-assisted suicide – because “human life is a fundamental good” – says “it’s not our job to answer questions like” whether a trucking company wrongfully fired a driver for refusing an unsafe and life-threatening order?
Gorsuch insists the case turns on whether Maddin “refused to operate” the vehicle, and says Maddin didn’t because he unhooked the trailer and drove the cab to a gas station to warm himself up. Gorsuch dismisses concerns for the driver’s safety, writing:
After all, what under the sun, at least at some level of generality, doesn’t relate to “health and safety”? The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood.
Well, unless the “perceived evil” is a doctor helping a patient die with dignity. Or, and this is where Gorsuch’s ‘natural law’ theory truly intends, a woman choosing to terminate a pregnancy.
Simply, Neil Gorsuch claims the authority to decide when “human life is a fundamental good” (a terminally ill patient, or a fetus) – and when it’s merely “perceived evils lurking in the neighborhood” (a truck driver freezing to death). And by his ‘natural law’ theory, his decision on which lives matter should supersede the text of a statute or even the Constitution itself.
That’s beyond “judicial activism.” That’s judicial tyranny.
“It seems to be, and correct me if I’m wrong here, but virtually every case of voter fraud I can remember in my lifetime was committed by Democrats”
Okay, I’ll correct him. He’s wrong:
The former chairman of the Colorado Republican Party is charged with forgery and voter fraud for allegedly forging his wife’s mail-in ballot from last year’s election, according to court records and sources.
Steven Curtis was the chairman of the state party from 1997 to 1999. He was charged Feb. 1 with one count of forgery of a public record, a fifth-degree felony, and an elections mail-in ballot offense, a misdemeanor.
The criminal complaint for his arrest says that Curtis tampered with a 2016 General Election mail-in ballot. Sources tell Denver7 that he signed the ballot, which was his wife’s, with her name, which led to the forgery charge.
The misdemeanor charge stems from him allegedly filling out her ballot.
On the other hand, if you define “voter fraud” as “brown people voting at all” … then yeah, that’s mostly Democrats….
Photo Credit: Nicholas Kamm (AFP/Getty Images)
Good day and good nuts