Judicial Statesmanship: The Legal and Moral Philosophy of Neil Gorsuch (original) (raw)

Abstract

Justice Gorsuch’s legal philosophy defends judging as the application of neutral principle, while his academic writings defend traditional morality and its categories: free will, individual responsibility, and the conscience. The present essay attempts to answer questions raised by George Will, among other commentators, concerning the status of natural law and positivism in Gorsuch’s thought. It does this by carving a path through Gorsuch’s writings which illuminates the inner relation between his (apparent) neutral-principles approach and his moral philosophy. The essay argues that while Gorsuch explicitly defends a traditionalist, Hamiltonian approach to judging--“exercising neither force not will, but only judgement”--he implicitly defends a more robustly legislative role for judges. For Gorsuch, law and morality--while separate to a degree--ultimately depend upon and reinforce one another. In “hard cases,” therefore--cases in which the future of law, and a fortiori, morality, are at stake--judges may exercise what I call judicial statesmanship: deciding with a view to the legal, moral, and political effects that their decision will have on the polity as a whole.

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