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Does Donald Trump’s Supreme Court Nominee Believe the Constitution Is God’s Law?

Mother Jones

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During his confirmation hearings, scheduled to begin March 20, Supreme Court nominee Neil Gorsuch will face a thorough grilling about his legal philosophy. Among the topics likely to come up are his views on “natural law” and his relationship with John Finnis, the Oxford University professor who advised Gorsuch on his Ph.D. thesis and one the world’s leading proponents of this arcane legal theory.

Natural law is a loosely defined term, but to many of its conservative US adherents it is essentially seen as God’s law—a set of moral absolutes underpinning society itself. In recent years, natural law believers have invoked this legal theory to defend a range of anti-gay policies.

Natural law has been a source of controversy for at least two previous Supreme Court nominees in recent decades—for dramatically different reasons. In 1991, Harvard law professor Laurence Tribe wrote a New York Times op-ed opposing the nomination of Justice Clarence Thomas because he would be the “first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.” Reagan nominee Robert Bork, on the other hand, was criticized for not believing in natural law by then-Sen. Joe Biden (D-Del.), no less. Biden told Bork at his confirmation hearing, “As a child of God, I believe my rights are not derived from the Constitution…They were given to me and each of my fellow citizens by our creator.”

Bork, who was ultimately rejected by the Senate, had scoffed at the idea that judges could know God’s law and implement it. Later, in a 1992 essay, he warned that if natural law proponents “persuade judges that natural law is their domain, the theorists will find that they have merely given judges rein to lay down their own moral and political predilections as the law of the Constitution. Once that happens, the moral reasoning of the rest of us is made irrelevant.”

Natural law theory dates back to Thomas Aquinas and the Greeks before him. It isn’t necessarily liberal or conservative. Lawyers from the natural-law legal camp helped formulate the Universal Declaration of Human Rights in 1948, a seminal document in which 48 countries committed to pursuing progressive measures that would protect human rights and fundamental freedoms.

In the United States, natural law has taken on a variety of interpretations. One proponent was David Lane, a white supremacist implicated in the murder of Alan Berg, a Jewish radio talk show host in Gorsuch’s hometown of Denver. Lane’s followers gunned down Berg in his driveway in 1984. Lane, who died in 2007, claimed that natural law justified any act, however heinous, that preserved the perpetuation of a race—in his case, the white race.

American conservatives, including Justice Thomas, use the term “natural law” to suggest that the Constitution and the Declaration of Independence were divinely inspired. Former Sen. Jim DeMint (R-S.C.), now the president of the conservative Heritage Institute think tank, explained in an essay last summer, “Our rights as Americans are considered unalienable only because they were inherent in the natural order of life established by the laws of nature and nature’s God.”

Where does Gorsuch fit into all this? In the 1990s, he studied legal philosophy at Oxford under Finnis. Gorsuch, who received his doctorate in 2004, has remained close to his former mentor, whom he credits in the 2006 book that grew out of his Oxford thesis, The Future of Assisted Suicide and Euthanasia. In a 2011 speech at Notre Dame law school honoring the Australian-born academic, Gorsuch fondly recalled the “red ink he poured so carefully—and generously—over the papers we produced.” He declared, “I have encountered few such patient, kind and generous teachers in my life.” (Finnis did not respond for a request for comment. He has publicly declined to discuss Gorsuch, telling the Guardian earlier this month, “I have resolved not to say anything to anyone at all.”)

Finnis, who is 76, is considered a brilliant and influential legal philosopher. In 1980, he published a definitive text on natural-law legal theory, Natural Law and Natural Rights, in which he identified seven “basic goods” that are central to human well-being: life, knowledge, play, aesthetic experience, sociability of friendship, practical reasonableness, and religion. From there, he sought to outline an ethical framework for viewing law and justice. He believes all human life is innately valuable and intrinsically good, and not because it might be useful to others, as some utilitarian philosophers might argue.

Melissa Moschella, an assistant professor of philosophy at the Catholic University of America who knows Finnis, says natural law is “a theory about what’s right and wrong, and it’s based on what, through reason, we can know about what’s good and bad for human beings, so that we act in ways that are always respectful of the well being of ourselves and others.”

On many levels, Finnis’ philosophy is profoundly humane. It led him to oppose the death penalty and to become an outspoken advocate for nuclear disarmament in the 1980s. He believed that even threatening to use nuclear weapons was immoral because it indicated a willingness to kill innocent civilians indiscriminately. Natural law also made him a foe of abortion and assisted suicide. While his work doesn’t invoke the divine, as DeMint and others have, Finnis’ views square with his Catholic faith: He converted to Catholicism in 1962 and has advised the Vatican on Catholic social teaching.

Not long after his conversion, Finnis discovered Germain Grisez, a French American natural-law philosopher and a prominent defender of the Church’s opposition to contraception. Griesz and Finnis began to collaborate, and Finnis’ work grew both more conservative and more focused on sex, particularly gay sex.

In 1993, Finnis testified for the state of Colorado in a case challenging Amendment 2, a ballot initiative that would have banned local governments from passing human rights ordinances or other anti-discrimination laws that would protect LGBT people. State Solicitor General Timothy Tymkovich, who now serves alongside Gorsuch on the 10th Circuit Court of Appeals, brought Finnis in to explain the allegedly classical roots of anti-gay prohibitions going back to Socrates. In his trial testimony, Finnis compared gay sex to bestiality “because it is divorced from the expressing of an intelligible common good,” according to part of his deposition published by The New Republic.

Martha Nussbaum, a prominent professor of law and ethics at the University of Chicago, served as an expert for the other side, suggesting that Finnis was misinterpreting the Greeks, who clearly had some acceptance of homosexuality in their culture. Nussbaum’s side ultimately prevailed at trial and at the US Supreme Court in its landmark decision in Romer v. Evans.

Nussbaum says Finnis “is a very fine moral philosopher” and “author of important books that I admire.” But she notes that his work on sexual orientation has less going for it. “Finnis’s book Natural Law and Natural Rights is entirely different from the ‘new natural law’ work inspired by Germain Grisez that he got into later,” Nussbaum writes in an email. “The former is excellent philosophy, the latter arcane and strange conservative argument. In England Finnis on the whole focused on philosophy, and people were shocked by some of the things he published beginning in 1994.”

That year, he authored an article titled “Law, Morality, and ‘Sexual Orientation.'” In it, Finnis insisted that “homosexual orientation” was a “deliberate willingness to promote and engage in homosexual acts—a state of mind, will, and character whose self-interpretation came to be expressed in the deplorable but helpfully revealing name ‘gay.'”

Finnis’ students have deployed his legal theories to battle same-sex marriage in the United States. Among his best-known acolytes is Princeton professor Robert George, who co-founded the anti-gay National Organization for Marriage. George filed a brief in the 2013 Supreme Court case over the same-sex marriage ballot initiative in California, Proposition 8, and he also testified for the state of Colorado in the 1993 anti-discrimination case along with his former teacher.

Gorsuch’s long relationship with Finnis has put him in close company with George and other anti-gay figures. When Gorsuch spoke at Notre Dame in 2011, he shared the stage with anti-gay theorists including George and Germain Grisez. Gorsuch has also worked with George on academic projects, including his tome on assisted suicide, which was part of a series of books George edited at Princeton University Press. George recently wrote an op-ed in the Washington Post supporting Gorsuch’s Supreme Court nomination.

Whether Gorsuch adheres to the same natural law philosophy as George and Finnis about the alleged societal harm of homosexuality is hard to know. His book on assisted suicide mentions Supreme Court cases involving gay rights, but only as reference points for analyzing the court’s thinking, not his own, and its relevance to euthanasia. He’s hired openly gay clerks and attends a liberal Episcopal church in very liberal Boulder, Colorado, and gay friends attested to his openness in a recent New York Times story.

But he also voted in favor of Hobby Lobby, the craft store whose owners sued the Obama administration, alleging that the company’s religious freedom rights were violated by the Affordable Care Act’s requirement that employers provide health insurance that covers contraception. That decision might square with a natural-law view respecting the exercise of religion as a critical human right, but it also may have led to more persecution of LGBT people. The Supreme Court decision upholding that ruling has since been used to defend businesses that have discriminated against LGBT people—a view some lower courts have upheld. The Hobby Lobby case was brought by the Beckett Fund for Religious Liberty, a religious nonprofit law firm on whose board George serves.

Catholic University’s Moschella says Finnis makes a distinction in his work between morality and the law. He believes that what a judge does on the bench is not determined by natural law but rather by the laws of that nation. So if Gorsuch really does endorse Finnis’ philosophy, Moschella says, his moral views on abortion, gay rights, and other hot-button issues and what natural law says about them is irrelevant. She says, “What is relevant to his work as a judge is his commitment, which is also a moral commitment, to upholding the law of the land.”

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Does Donald Trump’s Supreme Court Nominee Believe the Constitution Is God’s Law?

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“Jane Roe” Has Died. Abortion Rights Might Not Be Far Behind.

Mother Jones

Norma McCorvey, the “Jane Roe” plaintiff in the Roe v. Wade Supreme Court case that legalized abortion in the United States, died Saturday at at an assisted-living facility in Katy, Texas. She was 69.

McCorvey was a complicated symbol for the political fight over abortion rights. Following the high court’s 1973 decision, she became the face of the pro-choice movement. At the time, she represented the struggles faced by ordinary women confronted with unwanted pregnancies. Abortion was illegal in Texas in almost all cases when she learned she was pregnant in 1969. Poor and with a ninth grade education, she didn’t have the means to seek abortion across state lines. The legal battle dragged on for three years; by the time she won, she had long since carried the pregnancy to term. She gave the baby up for adoption.

But in 1995, McCorvey reversed her stance on abortion after discussing the Bible with Pastor Flip Benham, the director of Operation Rescue, an aggressive pro-life group that had moved in next door to the women’s health clinic where McCorvey worked. She soon quit her job at the clinic and was baptized by Benham. She became a spokeswoman for the anti-abortion movement, penning a book about her ideological transformation and traveling the country giving speeches to religious groups.

Like McCorvey’s own views on abortion, popular opinion about a woman’s right to choose has been the subject of much conflict and debate since the landmark 1973 case. And while a strong majority of Americans still agrees with the Roe decision, dismantling the right to an abortion is now an explicit objective for both the new administration and the Republican-led congress.

In the month since President Donald Trump’s inauguration, GOP lawmakers have put forward measures aimed at pulling federal family planning funds from Planned Parenthood and repealing the Affordable Care Act, including its requirement that insurance plans cover contraceptives. They have also introduced bills that would make abortion illegal after 20 weeks of pregnancy and would ban the standard abortion method used by doctors in the second trimester.

A Supreme Court majority that would be open to overturning Roe is becoming increasingly likely, as well. This is something Trump promised repeatedly during the campaign as part of his largely successful effort to win over skeptical evangelical voters. As a candidate, he made four promises to the anti-abortion community: He pledged to nominate anti-abortion justices; defund Planned Parenthood; sign the 20-week abortion ban; and permanently enshrine into law the Hyde Amendment—a 40-year old budget rider that Congress has repeatedly used to bar federal tax dollars from funding most abortions. Assuming that Judge Neil Gorsuch is confirmed this spring, it may only take the departure of one pro-abortion-rights justice to tip the balance on the court against Roe.

During the campaign, the formerly pro-choice Trump brought on Mike Pence to shore up his anti-abortion bonafides. As governor of Indiana, Pence signed some of the country’s strictest abortion restrictions into law, including a measure requiring burial or cremation of aborted fetus remains and a ban on abortions due to fetal anomaly. In a September 2016 speech, Pence told an evangelical conference in Washington, DC, “I want to live to see the day that we put the sanctity of life back at the center of American law, and we send Roe v. Wade to the ash heap of history, where it belongs.”

Last month, Pence became the highest-ranking government official to ever address the annual March for Life in person. “Life is winning again in America,” Pence said at the anti-abortion gathering, pointing to the “historic election of a president who stands for a stronger America, a more prosperous America, and a president who, I proudly say, stands for the right to life.”

Roe has been seen by many as an imperfect decision. Justice Ruth Bader Ginsburg, one of the foremost legal warriors for gender equality, has criticized the decision for changing too much, too quickly. After founding the ACLU’s women’s rights project in the 1970s, Ginsburg focused on fighting sex discrimination with an incremental strategy. She brought several cases to the Supreme Court, building up a body of court victories that together established a sweeping legal and moral understanding of sex discrimination as something that is both illegal and wrong. Roe, she said at a conference in 2014, “established a target” for abortion opponents because it ditched this incremental approach, instead imposing a drastic change on states across the country. She suggested that if the high court had moved a little more slowly, today the idea of reproductive choice wouldn’t be so controversial. “A movement against access to abortion for women grew up, flourished, around a single target,” Ginsburg said.

After her victory as Roe’s main plaintiff, McCorvey joined the movement that sprung up to oppose Roe. Her death comes at a time when that movement, with help from the Trump White House, could achieve many of its long-held goals.

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“Jane Roe” Has Died. Abortion Rights Might Not Be Far Behind.

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Racism was a big factor in the Flint water crisis, a new report explains.

In December, when Musk got stuck in traffic, instead of leaning on the horn or flipping off the other drivers, he decided to build a new transportation system. An hour later, Max Chafkin writes in Bloomberg Businessweek, “the project had a name and a marketing platform. ‘It shall be called The Boring Company,’” Musk wrote.

Musk told employees to grab some heavy machinery and they began digging a hole in the SpaceX parking lot. He bought one of those machines that bores out tunnels and lays down concrete walls as it goes. It’s named Nannie.

Musk is the grown-up version of the kid who decides to dig to China: He doesn’t pause to plan or ask what’s possible, he just grabs a stick and starts shoveling. Maybe that’s the approach we need. As Chafkin points out, “Tunnel technology is older than rockets, and boring speeds are pretty much what they were 50 years ago.” And Bent Flyvbjerg, an academic who studies why big projects cost so much, says that the tunneling industry is ripe for someone with new ideas to shake things up.

Musk is a technical genius. But the things that make tunnels expensive tend to be political — they have to do with endless hearings before local government councils and concessions to satisfy concerned neighbors and politicians. For that stultifying process, at least, Musk’s new company is aptly named. If Musk figures out how disrupt local land-use politics, it would mean he’s smarter than anyone thinks.

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Racism was a big factor in the Flint water crisis, a new report explains.

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The Great Backyard Bird Count is losing feathers due to climate change.

In December, when Musk got stuck in traffic, instead of leaning on the horn or flipping off the other drivers, he decided to build a new transportation system. An hour later, Max Chafkin writes in Bloomberg Businessweek, “the project had a name and a marketing platform. ‘It shall be called The Boring Company,’” Musk wrote.

Musk told employees to grab some heavy machinery and they began digging a hole in the SpaceX parking lot. He bought one of those machines that bores out tunnels and lays down concrete walls as it goes. It’s named Nannie.

Musk is the grown-up version of the kid who decides to dig to China: He doesn’t pause to plan or ask what’s possible, he just grabs a stick and starts shoveling. Maybe that’s the approach we need. As Chafkin points out, “Tunnel technology is older than rockets, and boring speeds are pretty much what they were 50 years ago.” And Bent Flyvbjerg, an academic who studies why big projects cost so much, says that the tunneling industry is ripe for someone with new ideas to shake things up.

Musk is a technical genius. But the things that make tunnels expensive tend to be political — they have to do with endless hearings before local government councils and concessions to satisfy concerned neighbors and politicians. For that stultifying process, at least, Musk’s new company is aptly named. If Musk figures out how disrupt local land-use politics, it would mean he’s smarter than anyone thinks.

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The Great Backyard Bird Count is losing feathers due to climate change.

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Trump Expected to Sign Executive Orders Hitting the EPA

Mother Jones

Scott Pruitt will almost certainly be the next head of the Environmental Protection Agency. The Oklahoma attorney general’s nomination is expected to sail through Senate—possibly as soon as Friday—despite Democrats’ protests that he is unfit to lead an agency that he has repeatedly sued. The administration has already imposed a freeze on the EPA’s social media, halted its rulemaking, and reportedly mandated that all agency research be reviewed by a political appointee before being released to the public. But next week, once Pruitt is sworn in, the real frenzy will begin.

According to Reuters, President Donald Trump plans to sign between two and five environmental executive orders aimed at the EPA and possibly the State Department. The White House is reportedly planning to hold an event at the EPA headquarters, similar the administration’s roll-out of its widely condemn travel ban after Defense Secretary James Mattis took office. While we don’t know what, exactly, next week’s orders will say, Trump is expected to restrict the agency’s regulatory oversight. Based on one administration official’s bluster, the actions could “suck the air” out of the room.

Trump may have hinted at the forthcoming orders in his unwieldy press conference on Thursday. “Some very big things are going to be announced next week,” he said. (He didn’t make clear whether or not he was referring to the EPA.)

Former President Barack Obama’s array of climate regulations, including the Clean Power Plan limiting power plant emissions, are certainly high on conservative activists’ hit list. So too is the landmark Paris climate deal, in which Obama agreed to dramatically cut domestic carbon emissions and provide aide to other countries for clean energy projects and climate adaptation. The EPA’s rule that defines its jurisdiction over wetlands and streams is also a prime target. As attorney general, Pruitt launched lawsuits against a number of these regulations.

“What I would like to see are executive orders on implementing all of President Trump’s main campaign promises on environment and energy, including withdrawing from the Paris climate treaty,” said Myron Ebell, who headed Trump’s EPA transition and recently returned to the Competitive Enterprise Institute, in an email to Mother Jones.

H. Sterling Burnett, a research fellow the Heartland Institute, which rejects the scientific consensus on climate change, says Trump could start by revisiting the Obama administration’s efforts to calculate a “social cost of carbon“—and by forbidding its use to determine costs and benefits of government regulations. He also wants to see broader restrictions on how the EPA calculates costs and benefits. In particular, Burnett hopes Trump will prohibit the agency from the considering public health co-benefits of regulations—for example, attempts by the EPA to argue that limits on CO2 emissions from power plants also reduce emissions of other dangerous pollutants.

Or Trump could take a cue from Republican Attorneys General Patrick Morrisey (W.V.) and Ken Paxton (Texas), who recommended in December that Trump issue a memorandum directing the EPA to “take no further action to enforce or implement” the Clean Power Plan. (The Supreme Court halted implementation of the rule a year ago while both sides fight it out in federal court).

The holy grail for conservatives would be reversing the agency’s so-called “endangerment finding,” which states that greenhouse gas emissions harm public health and must therefore be regulated under the Clean Air Act. The endangerment finding is the legal underpinning for the bulk of Obama’s climate policies, including the restrictions on vehicle and power plant emissions. Undoing the finding wouldn’t be an easy feat and can’t be accomplished by executive order alone. The endangerment finding isn’t an Obama invention; in 2007, the Supreme Court ruled that the EPA must regulate greenhouse gasses if it found they harmed public health. Pruitt said during his confirmation hearing that the administration wouldn’t revisit the finding, but he also launched an unsuccessful lawsuit against it in 2010. Neither Ebell nor Burnett expects to see Trump to tackle the endangerment finding just yet.

Environmentalists are already planning their response. Litigation is certainly an option, but it would of course depend on the details of Trump’s executive actions. Several groups, including EarthJustice and Natural Resources Defense Council, have already sued to block Trump’s earlier executive order requiring that every new regulation be offset by scrapping two existing regulations. Their case: The administration can’t arbitrarily ditch regulations just because the president wants fewer of them on the books.

They could be making a similar case soon enough. “A new president has to deal with the record and evidence and findings,” EarthJustice’s lead attorney, Patti Goldman, said. “If you take climate and the endangerment finding, that is a scientific finding that is upheld by the court. That finding has legal impacts. If there’s a directive along those lines, there will have to be a process.”

Of course, anti-EPA Republicans disagree about what is constitutional, which is one reason the agency is in for a tumultuous ride over the next four years. For many conservatives, no EPA at all—or at least one that has no regulatory powers—is the best option. “I read the constitution of the United States, and the word environmental protection does not appear there,” said Heartland’s Burnett. “I don’t see where it’s sanctioned. I think it should go away.” A freshman House Republican recently introduced a bill to do just that, but there’s no sign that it’s going to pass anytime soon.

And while Burnett acknowledges that the EPA probably won’t be vanishing in the near future, he’s been happy with the direction Trump has taken so far. He’s pleased with the president’s moves to restart the Keystone and Dakota Access pipelines, and he’s hopeful that the administration will move toward an EPA with “smaller budgets and a smaller mission, justified by the fact that you’ll have fewer regulations.”

Depending on what Trump does next week, that could be just the beginning.

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Trump Expected to Sign Executive Orders Hitting the EPA

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