For some conservatives, bracing themselves on the night of the election, the evening offered nothing less than a miracle unfolding. But that sense of things was even more pronounced for young lawyers defending religious plaintiffs in the courts, and for the small band of conservatives on the Supreme Court. For them, it was an evening of deliverance. The lawyers were going into court to defend clients like the Little Sisters of the Poor, trying to resist mandates on abortion, and these lawyers were facing three-judge panels containing appointees of Clinton and Obama. They knew with a cold surety what those panels would look like four or eight years hence as a new Clinton administration filled them with the professoriate of the left. As for the conservatives still sitting on the Supreme Court, they were suddenly delivered from the prospect that so afflicted our late friend Antonin Scalia—that they would be condemned to a life of writing angry dissents.
What a striking moment it was, then, to see President Trump bringing forth Neil Gorsuch as the successor for Justice Scalia. No grumbling conservative could have served up a better choice, whether measured as a serious scholar, writer, craftsman of the law, or a person so completely in control of himself and the principles that command his allegiance. And it had to be evident to the Never Trumpers that this choice would never have issued from Hillary Clinton. As the possibilities start to unfold, the same people who brought us the selection of Neil Gorsuch might have the chance to provide one, two, or even three more nominees. But even if this administration has the chance to set the character of the Court with more appointments, we are still left with the cardinal question: What difference would that really make to the character of our jurisprudence?
The seasoned veterans of the two Bush administrations think they know enough now to avert the selection of another Anthony Kennedy, Sandra Day O’Connor, or David Souter. These judges had a demoralizing effect on conservatives when they defected on the matter of abortion, and Kennedy even more so as he advanced the case for gay rights along a path that surely led to same-sex marriage—as Justice Scalia clearly saw and sharply warned. But how would these mistakes be averted? The conservative lawyers who screen the candidates for judgeships seek to be prudent by nimbly avoiding anything so plain and direct as asking the candidates exactly how they would vote on these matters. The interviewers try to divine the answer by asking questions that would test in some way the principles of judgment, or the understanding of “jurisprudence,” that command the respect of the judge. But will that probing really touch the core of things now? Or will it yield the same kind of mechanistic style that has made conservative jurisprudence so morally empty—and so incapable of facing the challenges raised in litigation by the left?
Justice Holmes gave voice to the modern legal project when he registered the hope that “every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law.” In other words, an understanding of “law” made ever purer by being ever more detached from any moral content. Conservative lawyers and judges have had no special reverence for Holmes, but they have backed themselves into a comparable understanding as they have recoiled from what they see as the vice of liberal jurisprudence: a cavalier willingness to appeal beyond the text of the “positive law,” the law that is posited or enacted, either in statutes or in the body of the Constitution. The dreaded appeal would be to those principles of law so deep that they are not contained in the text of the Constitution (for example, that “we do not hold people blameworthy and responsible for acts they were powerless to affect”). In the hands of lawyers such as John Marshall, James Wilson, and Alexander Hamilton, these axioms of law would be there even if there were no Constitution. Which is to say: They are part of the “natural law,” the dreaded “N-word” among some conservative jurists. The concern of judicial conservatives was sparked by those liberal judges untethered from the discipline of the text, who would soar off to invent new “rights.” But if the concern was that liberals went beyond the text and engaged in spurious moral reasoning, the corrective surely would be to show why the reasoning was spurious. The conservatives chose a different path: In a stroke of ingenuity, they would cut off the path of the liberal judges by forgoing moral reasoning altogether! They would offer, as a rival vision, a jurisprudence that forswears any appeal to principles outside the text of the Constitution.
Of course, they could never hold to that position. Even my dear late friend Antonin Scalia would persistently appeal to principles outside the text precisely for the sake of showing just how the text could be understood in the most plausible way. And so, in one of his last cases, he declared that “The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content.” Quite apart from the claim that this proposition stands as an axiom or necessary truth—a claim quite contested—that “axiom” he mentioned is nowhere contained in the text of the First Amendment. How then did he claim to know it? To take a line from Alexander Hamilton, Scalia very likely regarded his explanation as something sensible in itself, a point “which, antecedent to all reflection or combination, commands the assent of the mind.” It would stand as one of those “primary truths or first principles upon which all subsequent reasonings must depend.” Which is to say, it was part of those axioms of reason that formed the ground of—whisper—the natural law.
I used to say of my dear friend that he persistently offered us handsome examples of the reasoning of natural law while claiming that it could not be done. In the meantime, the heralded conservative style of judging showed itself in the most telling way in recent years on that vexing issue of same-sex marriage. The conservative judges tended to argue in this vein: The Constitution is silent on the matter of marriage; the judges are not in a position, then, to declare any “constitutional rights” on this subject emanating from the text or logic of the Constitution; and therefore this question should be left in the political arena for the people and their elected representatives to decide.
But that is not what the conservative judges say as they look back on the landmark case of Loving v. Virginia. There was nothing about marriage in the Constitution in 1967, but the Court struck down the laws barring marriage across racial lines, and no conservative judge now is prepared to say that the Court did the wrong thing. What had to be explained there was that race was essentially irrelevant to the capacity of people to enter into marriage. And in the same way, what had to be done in the cases of same-sex marriage was a serious effort to draw on the substantive arguments, made by Robert George, Ryan Anderson, Sherif Girgis (and others of us) to explain again why the marriage of a man and woman is the most defensible form of marriage. The conservative judges did not move seriously to that level until John Roberts’s dissent in the Obergefell case. But by then it was too late, for the other shoe was finally dropping and Justice Kennedy was well into the work of installing same-sex marriage.
What we have had, then, are judges of the left making moral arguments, and instead of showing why those arguments are spurious, the conservatives retreat to the simple report of the positivist that there was no mention of marriage or abortion in the text of the Constitution. The question of marriage offered the most notable and recent example. And yet, these deep flaws in conservative jurisprudence come into sight even more dramatically if we return to that question of abortion, and look back forty years to the briefs and the dissenting opinions that were offered in Roe v. Wade.
For the last five years, a group of gifted teachers of philosophy and law has been meeting regularly with friends on the federal bench under the auspices of our James Wilson Institute on Natural Rights and the American Founding. The seminar has sought to address the hesitation of conservative judges to take natural law seriously and apply it in their cases. The common misconception, among judges as well as some academics, is that the natural law is a “theory” that may be adopted or ignored in certain cases. Aquinas famously said that the divine law we know through revelation, but the natural law we know through the reasoning that is accessible to human beings as human beings.
What seems to come as a surprise, even to the judges long seasoned in the law, is that the natural law does not involve an appeal to theories or to foggy ideals hovering in the sky. It finds its ground, rather, in those axioms or canons of reason that underlie all of our practical judgments, including our judgments on right and wrong. The most accomplished lawyers and jurists in the period of our founding persistently traced their judgments back to those axioms that were not contained in the Constitution. And in that way, without invoking the dreaded N-word, they did a jurisprudence of natural law.
This meeting of professors and judges, joined in a common search and given to the same kind of questioning, turned a decisive corner about a year ago. The epiphany came when we returned to Roe v. Wade. The point of entry came through an essay by Paul Ramsey that had made a powerful and decisive impression on me when I first began to think seriously about this matter of abortion more than forty years ago. Ramsey’s essay was called “Reference Points in Deciding about Abortion,” part of a book edited by John T. Noonan, The Morality of Abortion. Ramsey traced the fetus and embryo back, stage by stage, pointing out these interesting markers:
• Between the eighteenth and twentieth weeks of pregnancy, the fetal heartbeat can be heard with a simple stethoscope. (We know now that the fetal heartbeat can be picked up with a Doppler device as early as the sixth or seventh week of pregnancy.)
• At twelve weeks the structure of the brain is complete. At this point, fingerprints and sole and palm lines are unique and there for life.
• At the ninth or tenth weeks, there are local reflexes of swallowing or squinting.
• At eight weeks fingers and toes are discernible.
As Ramsey traced the development back, he finally reached the point that proved, for me, telling and decisive: that there is nothing we have now, genetically, that we did not have when we were that zygote, no larger than the period at the end of this sentence. It was all there—the genetic influences that would affect our coloring, our height, our allergies, our disposition to certain maladies and diseases. And we ought to know that, if any one of us had been destroyed at that stage, we would not have been the issue of the next pregnancy. That zygote alone was you or I.
As the seminar returned to the original briefs in Roe v. Wade, seeing them now through the lens of our concern about conservative jurisprudence, something now sprang out: The lawyers for the state of Texas had set forth in their brief an even richer form of the essay produced earlier by Paul Ramsey. It drew more deeply and precisely on the evidence of embryology that showed the human standing of the embryo or fetus at every stage of its development. It was richer also in the way it wove that evidence together with principled reasoning and brought forth a compelling moral case for the law to provide protection for that offspring developing in the womb. The brief for Texas demonstrated that this was not a matter of religious belief or arbitrary enactment of mere opinion (“value judgments”). The brief showed that the offspring of human beings is human at every stage of its development; that the offspring undergoes no change of species; that it is a separate organism, with a genetic definition of its own, certainly not part of the body of the mother.
But then came, in the most striking contrast, the dissenting opinions in Roe and the companion case of Doe v. Bolton, written by Justices Byron White and William Rehnquist. Those opinions did not draw on that rich substantive case made by the lawyers for Texas. In fact, the opinions were written in such a way that they could readily invite the inference that the judges had ignored, or left unread, the evidence and the argument contained in the briefs.
I continue to find it remarkable to hear people say that public opinion may change on abortion because we know so much more about the baby in the womb than we did in 1973 when Roe was decided. But the brief for Texas showed how precise and deep our knowledge of the child in the womb already was:
It most certainly seems logical that from the stage of differentiation, after which neither twinning nor recombination will occur, the fetus implanted in the uterine wall deserves respect as a human life. If we take the definition of life as being said to be present when an organism shows evidence of individual animate existence, then from the blastocyst stage the fetus qualifies for respect. It is alive because it has the ability to reproduce dying cells. It is human because it can be distinguished from other non-human species, and once implanted in the uterine wall it requires only nutrition and time to develop into one of us.
And perhaps the most jolting argument on that point came in the decision that the lawyers cited from a case in New York in 1953, Kelly v. Gregory, twenty years before Roe. The court dealt there with the challenge, emerging already, that the offspring was merely a part of the body of the mother and that a woman should have sovereign control of her own body.
We ought to be safe in this respect in saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and fetal development now than when some of the common law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.
The mother’s biological contribution from conception on is nourishment and protection; but the fetus has become a separate organism and remains so throughout its life. That it may not live if its protection and nourishment are cut off earlier than the viable stage of its development is not to destroy its separability; it is rather to describe the conditions under which life will not continue.
With this kind of statement, amplified by the brief for Texas, it becomes even more illuminating to reread the dissents written in Roe and in the companion case of Doe v. Bolton, by William Rehnquist and Byron White. Only Rehnquist wrote in Roe, and White did the main dissent in Doe. What can be said of these opinions is that they both sought to steer around the substance of the case, or step around it gingerly. And yet, with this oblique writing, they were addressing the case without truly addressing the wrong, or the injury, that the law was seeking to reach.
Justice Rehnquist took it as given that a state could not “prohibit an abortion . . . where the mother’s life is in jeopardy.” Nevertheless, he noted that the Court was willing to concede that restrictions may be more justified later in the pregnancy, presumably because the offspring comes to resemble more and more the being one would recognize as a “child.” But if Rehnquist had paid attention to the depth of the argument in the brief, it should have been clear to him that the gradation of trimesters was utterly irrelevant to the status of that small human being, for it had never been anything other than a human being through the entire length of the pregnancy. The height and weight of a human being was quite irrelevant to the question of a homicide.
Justice White was even more emphatic about the grounds on which abortions could be regarded, in his judgment, as not only unjustified, but debased:
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons—convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience . . . rather than to protect their life or health.
The point was as sharply expressed there as it may ever be. But in that case why did it not yield to the judgment that convenience, or the avoidance of embarrassment, could not possibly be taken as the justification for killing any other human being? That was not the judgment that White offered. Instead, he transmuted the point into a question of “balancing” and “value judgments”:
The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States.
For White, the matter was transformed: from the hard truth of destroying a human life to the balancing of utilities and values. In the course of that move, the fetus was reduced to merely a “potential” life. White ignored the commanding central proof in the brief for Texas: that the offspring in the womb, powering or integrating its own growth, was never merely a potential life, but nothing less than a living human being from its first moments. Yet, in White’s hands, that inescapable truth—what should have stood as the predicate for any serious discussion of abortion—was treated as a matter hardly worthy even of notice.
The killing of the child—the gravest concern that had brought forth the law—was now displaced as the main question in the case. The harm done to the fetus was replaced with the harm visited on the people and legislatures in the separate states, as they were barred from “balancing” how much they “valued” the life of a child against the interests and convenience of a pregnant woman.
Both White and Rehnquist fell back into the familiar groove of claiming, as White did, that there was nothing in the “language or history of the Constitution to support the Court’s judgment.” To reach this result, said Rehnquist, the Court had to “find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” A majority of the states, he noted, have had restrictions on abortion going back a hundred years, all of which suggested powerfully that the Fourteenth Amendment was never understood to entail a right to an abortion. And then he invoked a talismanic phrase: that the right to an abortion thus could not be claimed to be “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
This was the familiar response of conservative jurisprudence: to appeal to “tradition” as a way of evading that vexing question of whether the practice in question is morally defensible or indefensible. The claim was that we would find a ground of argument far less contentious, far less open to political quarreling, if we appealed to the historical record, rather than invite an argument over moral truths. But as we came to see, arguments over the Second Amendment, or anything else of consequence, could be counted on to elicit rival, contentious readings of the historical record. And yet that was never enough to shake the confidence of conservative judges that the appeal to tradition is valued precisely because it delivers a ground of judgment safely distant from the need to weigh the moral justifications for acts of legislation.
It may be worth stepping back for a moment and reminding ourselves that, for all of their differences, the dissenting judges and the lawyers for Texas were coming down on the same side. With all of the gyrations and indirections, the dissenting judges were finally saying that they would have sustained that law on abortion in Texas. And yet the differences between the brief and the dissenting opinions are striking. The dissenters could come to the threshold but not speak those simple, magic words: that the law in Texas was justified. They did not wish to speak those words, for they wished to avoid casting judgments on the substance of the laws. The judges, we might say, were governed by a “theory”—a theory that told them what was decorous or indecorous for judges to do in judging acts of legislation.
In striking contrast, the lawyers for Texas acted “naturally.” They sought to show in a strenuous way just why the law in Texas was “justified”—just, rightful—as it imposed a law and removed the freedom to order the killing of a small human in the womb. This natural reflex of the lawyers in Texas has managed to sustain itself despite several generations of teaching in the law schools determined to root it out. As we have seen, Justice Holmes marked the critical turn in legal teaching when he proclaimed the hope of producing judgments of “law,” perfected by being cleansed of “every word of moral significance.” For Holmes, the ruling majority based its claim to rule not on any principle affirming the rightness of ruling human beings with their consent and free elections; rather, the majority found its sufficient claim to rule in the brute fact that the majority, by force of numbers, could overpower the minority. Hence Holmes’s famous observation that the role of the judge was to be “the supple tool of power,” to assure that the ruling majority got its way, but in a civilized manner. The veneer of civility would cover the unlovely fact that, for Holmes, the rule of majority was at bottom simply the Rule of the Strong.
The lawyers for Texas did not take that path. They engaged an older reflex, which had survived the legal revolution wrought by Holmes and his epigones, because it was bound up with something more deeply planted in human nature. The lawyers for Texas understood that the law worked by closing down personal choice and replacing private freedom with a uniform public rule. What kicked in for the lawyers for Texas was the irreducible moral understanding: If we seek to close down the freedom of people on any point, or close down their private choice, we should be required to show that we have, as the ground of our policy, a principle of justice that would hold its validity for everyone who comes under the law.
Which is to say, we have, as the ground of the law, a “moral” proposition. What was engaged here was what was understood at the very beginning as the connection between the logic of law and the “logic of morals.” When we move to the level of a moral judgment, we move away from statements of merely personal taste or private choice, and we begin to speak about the things that are more generally or universally right or wrong, just or unjust, for others as well as ourselves. As Aristotle taught us, law springs from the nature of only one kind of creature, that creature who is able to give reasons regarding matters of right and wrong. We are warranted in making laws only because we are capable of reasoning through to judgments of that kind that are not merely personal and subjective.
Let us suppose for a moment that the dissenters in Roe and Doe had been willing to do the work—that they had been willing to put on the record the robust moral defense of those laws in Texas, which the lawyers in Texas had so artfully composed for them. What difference would all this have made for Roe v. Wade? The answer, I think, would reveal itself readily, for it takes little imagination to see that a move of that kind would have put a heavier burden on Justice Blackmun to sustain his opinion for the Court and draw allies to his side. The dissenting opinions would have exposed Blackmun’s opinion, in the plainest way, as a caricature composed of half-truths and untruths, including a “history” of abortion that was recognized even at the time as thoroughly false. And even Blackmun might have come to see that his argument could not have stood up against the array of empirical evidence that formed that brief for the state of Texas.
That this might have been so is not mere fantasy. A telling point here was contained in a story withheld for many years out of a decorous concern for things said in private. But it is now a long while, and the story bears a lesson too important to remain unlearned. Without revealing more than strictly needs to be said, the incident involved a dinner party in Washington not long after the decision in Roe v. Wade was announced. Sen. James Buckley was still sufficiently steamed by the decision that he was willing to engage at table with a friend from his days at Yale, Justice Potter Stewart. Stewart had helped form the majority in Roe. Buckley bore the gravest moral objections to abortion, and he expressed his deep incredulity with the decision: It seemed to betray, he thought, a flippant disregard for the facts known well to embryology about the development of the child in the womb. He then rolled off, in a series of steps, the emerging features of the embryo turning into a fetus, resembling more and more the child we could come to know. From the accounts I’ve heard, Sen. Buckley’s account ran along the same lines that I find so riveting as they were unfolded in the brief by the lawyers for Texas. And as Buckley unfolded the sequence, with the meaning inescapable, Stewart was apparently jarred. As the story goes, Stewart recoiled; he responded with disbelief that this account could be true. But the details cited by Buckley were quite undeniably true. They were confirmed in the textbooks on embryology and obstetric gynecology—and as he pointed out, they had been set forth quite amply in the brief. Had Stewart not read that careful, extended brief?
Whether he had read the brief or not, or read it with any care, his surprise virtually makes my case. Could we not readily imagine the effect on Stewart if the dissenting opinions had simply brought forth that string of evidence so carefully arranged in the brief for Texas? At the very least, we can suppose that Stewart would have been given pause. His doubts would no doubt have encouraged the doubts, or undermined the glib certainty, of his other colleagues. The result would likely have been a more closely divided Court, too divided perhaps to offer to the public such a momentous decision. The judicial politicians on the Court, doing their calculations, might have decided to hold back. Or a majority might even have been assembled to sustain the laws on abortion, as a majority on the Court had been assembled, just two years earlier, in U.S. v. Vuitch, to sustain a law on abortion in the District of Columbia.
But whether or not the dissent, cast in those terms, would have caused Stewart or other justices to peel away from the majority; whether or not it would have made any difference to the outcome of that case; it would have made the most profound difference for the coherence of conservative jurisprudence. For it would have kept before us a clear sense of what this case was truly about. And we could say still further: A style of judging that insists on focusing, in a demanding way, on whether the law is justified fits more aptly the true character of law, whether the judges get the answer in the case right or wrong. When judges focus their genius on that irreducible moral question—the question of whether the law is justified—judges do all they need do, in their honest labor, to do a jurisprudence of natural law.
The prospect of Donald Trump appointing a second or even a third nominee to the Court has buoyed up the pro-life movement and stirred hopes, long nursed, that the overruling of Roe v. Wade is now in reach. And yet the sovereign importance of overruling Roe is part of the distortion of our law and politics that Roe itself has fostered—and conservative jurisprudence has only deepened. For the conventional account, preserved among conservatives, is that Roe v. Wade merely needs to be overturned and then the question of abortion will be returned to the states, to the voters and their elected representatives, to decide. The truncated view of the dissents in Roe and Doe is in this way preserved: When the federal courts let go of this “right to abortion,” abortion ceases to be the business of the federal courts or the federal government. The legislative power and responsibility pass entirely to the states, where innocent life may well remain unprotected by law. Members of Congress have long preferred not to speak or cast votes on a subject that so riles their constituents back home, and they are quite pleased to assume that they will have no responsibility for casting votes on abortion once Roe v. Wade is overturned.
But this convenient state of mind blinds itself to another axiom running deep in our law. Once the federal courts have taken up an issue such as abortion and declared new rights, they have made abortion the business of the federal government. And any business of the federal government must come under the legislative powers of Congress. Congress already has the authority to legislate on abortion, not only in federal hospitals and military outposts abroad. It has the authority as well to shape and limit and counter the decision in Roe just as Lincoln and his Congress narrowed and countered the decision on slavery in the Dred Scott case. And Congress may take the first explicit step in that direction this spring when it passes the bill finally to order penalties for the surgeon who kills a child who survives an abortion.
My case here has been that conservative jurisprudence can take a gentle turn, with steps not the least esoteric, not the least encumbered by foggy abstractions. It may turn away from that mechanistic positivism in which it has sought, and conspicuously failed, to find safety. It can make that move through a willingness simply to focus again on the questions that mark the true center, or moral substance, of the issues that give the cases in our law their moral import. And there will be a small but telling sign of whether or not that gentle shift has been made: If the question of Roe v. Wade is posed again with a Court willing finally to overturn it, will the majority trot out the old verity? Will the justices merely announce that the Constitution contains no mention of abortion, and that therefore the Court had no basis for pronouncing any “right to abortion” forty-four years ago? If those clichés are heard again in the land, that will be the sign that nothing has changed. But we would see the most remarkable change if the writers in the majority take the time to do what Justices White and Rehnquist never thought worth doing years ago in Roe. The justices on the current Court will do the real work of jurisprudence if they draw on the briefs, take the time to set forth the evidence, and show why the state or the federal government has a compelling case for casting around infants in the womb the full protection of the law. And if the conservative justices do that—if they take up the task of explaining the justification for laws that protect innocent life—they will do as much as a jurisprudence of natural law need ever do.
Hadley Arkes is Ney Professor in American Institutions at Amherst College and founder and director of the James Wilson Institute on Natural Rights and the American Founding.
Follow the conversation on this article in the Letters section of our August/September 2017 issue.