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Wednesday, February 1, 2017

Trump's Judge: Neil Gorsuch is no Souter

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UntitledSupreme Court nominee Neil Gorsuch and his wife, praying in the White House alongside President Trump, his family, staff members, and Father Paul Scalia, son of the late Justice, who offers the Latin Mass.
(Time for another Soros-sponsored 'spontaneous' protest, PRONTO!)

The nomination of Neil Gorsuch to fill the “Scalia seat” on the Supreme Court has already received its existential verification as a victory for what passes for judicial conservatism in America: the loony Left, already on the verge of declaring civil war, is now writhing and moaning in a collective fit of apoplexy.



Why? Really just one reason and one reason only: a perceived threat to their unholy trinity of abortion, contraception and sodomy. A diabolical cult of Moloch is what the Democrat Party is so plainly revealed to be in the throes of its most unexpected exorcism from the body politic in the elections of 2016. Like a demon on the way out of a victim of possession as the priest intones the ritual words of expulsion, the Democrat Party is left only with the capacity for stentorian outbursts of rage as it desperately clings to its about-to-be-liberated host.

Now don’t get me wrong. I am not suggesting anything like a miraculous metanoia that will convert America into a Christian commonwealth. Like the soul that has been freed by exorcism, the effects of America’s original sin—her political concupiscence, as it were—remain encoded in the DNA of her organic law and the Enlightenment errors that inform it.

Thus, with Gorsuch we are getting about the best that we can expect within the American juridical framework: a conservative legal positivist who will defend the American conception of religious liberty and defer to the constitutional text as originally posited and the will of present-day legislative majorities when not in conflict with the Constitution’s “original meaning.” In other words, another Scalia, or very nearly that.

But this is no small thing:

First of all, as a judge of the Tenth Circuit, Gorsuch wrote an opinion siding with Hobby Lobby in the Obamacare “contraceptive mandate” controversy, joining the five-judge majority of the en banc panel in holding that Hobby Lobby had standing to bring a claim for violation of its right to free exercise of religion as protected by the Religious Freedom Restoration Act (RFRA), that it had a likelihood of success on the merits of its RFRA claim, and it would suffer irreparable harm without injunctive relief against the mandate. Gorsuch went even further, however, joining a four-judge plurality in holding that the district court should have issued a preliminary injunction on the merits.

To quote from his concurring opinion in that case (containing the obligatory tribute to American-style tolerance): “The Act [RFRA] doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance.” Thus, I see no likelihood Gorsuch would uphold any state or federal regulation that imposes a substantial burden on free exercise. At least a 5-to-4 decision in favor of any Catholic with “unpopular religious beliefs” coming before SCOTUS in such a case seems certain with Gorsuch on the bench.

Secondly, as to the pro-life issue, in his treatise on “The Future of Assisted Suicide and Euthanasia” Gorsuch, to the great alarm of the crazed Left, declares that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” Watch this hilarious video of Tucker Carlson attempting to extract a simple Yes or No from a California Congressman in answer to the question whether he agrees that “the intentional taking of human life by private persons is always wrong.” Gorsuch, I am told, studied under the Catholic legal scholar and moral philosopher John Finnis at Oxford, where he earned his doctorate. Finnis’s natural law theory is terribly flawed, but at least it is a natural law theory! Gorsuch (an Episcopalian) appears to have absorbed a Finnis-like conception of justice rooted in natural law.

Does this mean Gorsuch is likely to vote for the outright overruling of Roe v. Wade? I simply do not know. But what seems quite clear, given his Scalia-like deference to electoral majorities and the democratic process, is that he would uphold even severe state law restrictions on abortion amounting to a virtual abolition of the practice in given states, as we have seen with some state statutes struck down by federal courts precisely because they would all but bring a halt to abortions in those states.

All in all, Gorsuch would appear to be to very much to the right of Kennedy and but a hairsbreadth to the left, if that much, from the late Justice Scalia, whom Gorsuch in fact regarded as a mentor. Gorsuch is certainly no Souter. The Left knows this, which accounts for its violently spasmodic reaction to the nomination.

Finally, one cannot overlook the remarkable scene following the nomination as shown in the photo above: the nominee and his modestly attired wife in the White House, praying together with President Trump, staff members, and none other than Father Paul Scalia, son of the late Justice, a solidly traditional priest who offers the Latin Mass at Old Saint Mary’s in Washington. And then there is Trump’s own Tweet beneath the photo: “Moment of prayer last night after my nomination of Judge Neil Gorsuch for #SCOTUS. It was an honor having Maureen [Scalia] and Fr. Scalia join us.”

Something totally unexpected has happened with this election. The nation has inched back from the abyss into which the diabolical Left had nearly dragged it. That happy surprise accounts for the demoniac frenzy the Left now exhibits as the victory within its grasp has somehow been snatched away. Whether we are witnessing but a brief reprieve from final disaster or a true turning away from evil in this country remains to be seen.   But in my view the nomination of Neil Gorsuch to the United States Supreme Court is another (however small) step in the right direction, even if what the Gospel requires of both men and nations remains unattainable in America.

And, after all, we Americans can do no more in our present circumstances than what Pope Leo XIII counseled following the brutal triumph of political modernity over the Christian commonwealth: “make use of popular institutions, so far as can honestly be done, for the advancement of truth and righteousness; to strive that liberty of action shall not transgress the bounds marked out by nature and the law of God; to endeavour to bring back all civil society to the pattern and form of Christianity which We have described.”




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Last modified on Wednesday, February 1, 2017
Christopher A. Ferrara

Christopher A. Ferrara: President and lead counsel for the American Catholic Lawyers Inc., Mr. Ferrara has been at the forefront of the legal defense of pro-lifers for the better part of a quarter century. Having served with the legal team for high profile victims of the culture of death such as Terri Schiavo, he has long since distinguished him a premier civil rights Catholic lawyer.  Mr. Ferrara has been a lead columnist for The Remnant since 2000 and has authored several books published by The Remnant Press, including the bestseller The Great Façade. Together with his children and wife, Wendy, he lives in Richmond, Virginia.