DURING the campaign, Donald Trump pledged to name a Supreme Court justice “very much in the mould” of Antonin Scalia, the conservative jurist who died over a year ago. In many respects Neil Gorsuch, whose Senate confirmation hearings begin on March 20th, fits that bill. Like Mr Scalia, Mr Gorsuch, a decade-long veteran of the Tenth Circuit Court of Appeals, has a deeply conservative record. He aims to interpret the constitution in line with its original meaning. He is a clear and elegant writer.

There are some notable contrasts as well. Whereas Mr Scalia savaged his colleagues by likening their views to “pure applesauce” or “the mystical aphorisms of the fortune cookie”, Mr Gorsuch is refined and respectful of those with whom he disagrees. And Mr Trump’s nominee departs from Mr Scalia in a more telling and more worrying way: the role of philosophy in legal deliberation. Judicial adventures in metaphysics were anathema to the man who spent three decades in the seat to which Mr Gorsuch aspires. In a 1997 book, Mr Scalia described the constitution as “a practical and pragmatic charter of government” that neither requires nor permits “philosophising”. In Cruzan v Missouri Department of Health, a right-to-die case in 1990, the man Mr Gorsuch called a “lion of the law” noted that “the nine justices of the court” are no better suited to make fine distinctions regarding the morality of life support than “nine people picked at random from the Kansas City telephone directory”.

In his doctoral dissertation at Oxford University and in a subsequent book, Mr Gorsuch strayed from this principle by aligning himself with natural law—the theory that universal moral truths are a lodestar for human behaviour and norms. With a nod to his advisor, John Finnis, one of the world’s foremost natural lawyers, Mr Gorsuch built an argument against assisted suicide and euthanasia on a premise that may hint at his position on abortion rights as well: since “human life is fundamentally and inherently valuable”, he wrote, the “intentional taking of human life by private persons is always wrong”.

In 2006, in his first round of confirmation hearings, Mr Gorsuch said he would keep his philosophical positions out of his adjudication. “In the area of assisted suicide and euthanasia”, Senator Lindsey Graham noted, “you have been a fairly prolific writer and you certainly have an interest in that area”. How, he asked, “will your past positions affect your ability to judge in cases that may contain those questions?” Mr Gorsuch replied that his “personal views...have nothing to do with the case before me in any case”. The parties “deserve better than that”, he added, and “the law demands more than that”. Mr Gorsuch then stressed that his writings “have been largely in defence of existing law” and are “consistent with the Supreme Court’s decisions in this area and existing law in most places.”

A close look at Mr Gorsuch’s scholarship suggests these words of reassurance are less than reassuring. At several key points in “The Future of Assisted Suicide and Euthanasia”, his 2006 book, Mr Gorsuch shows quite clearly that his “personal” views on the ethics of end-of-life questions are closely tied to his sense of how the courts should handle lawsuits arising out of them. Though he says elsewhere that judges must “strive...to apply the law as it is”, not as they would like it to be, Mr Gorsuch’s natural-law lens appears inescapably coloured by ideological commitments.

The first sign of a link between Mr Gorsuch’s “inviolability-of-human-life” view and his jurisprudence comes early in his book’s ninth chapter where he traces the roots of the idea that there is a “moral imperative” to respect so-called “basic goods”. The idea stems from Aristotle and Aquinas, he notes, but is easily understood “from life’s experiences” in which we honour people “out of respect for their innate value”. Treating human life as inviolable is the premise of “our entire political system”, Mr Gorsuch argues, and both the Declaration of Independence and constitution reflect the founders’ belief in “self-evident human rights and truths”. Here we see Mr Gorsuch enlisting originalism—reading the constitution in line with its original meaning—to provide a textual foundation for natural law. 

Next, Mr Gorsuch surveys rival philosophical perspectives on the sanctity of life and finds them all wanting. “[A]ny attempt to draw lines between different sorts of lives...seems almost inevitably to become...an arbitrary and subjective enterprise”. Even a small degree of arbitrariness “is simply not acceptable” in “policy decisions” involving “who is and is not treated as fully human”. It follows that when judges consider laws permitting terminally ill people to enlist the help of doctors in their deaths, they should keep in mind that such acts “are categorically wrong”. Mr Gorsuch discusses one example—the Oregon Death With Dignity Act—and suggests (contrary to the Supreme Court’s approach) that courts should subject such laws to “heightened scrutiny” because they may threaten terminally ill individuals’ right to life. One finishes the book with the impression that Mr Gorsuch’s philosophical disdain for assisted suicide—now at odds with the law in six states (California, Colorado, Montana, Oregon, Vermont and Washington)—would factor heavily in his judgment should such a case ever come before him.

The next few days are America’s only chance to vet Mr Gorsuch before handing him a robe he could wear until well past the century’s midpoint. The question of whether he would push his personal moral views on the public is of utmost concern. Among the questions senators should ask Mr Gorsuch are these: Do you agree with Justice Scalia that Supreme Court justices are no better equipped to weigh in on end-of-life questions—and other fraught moral quandaries—than nine members of the public selected at random? What principle will guide you either to affirm universal moral truths (like the sanctity of life) you see embedded in the constitution, or to defer those questions to the people via their representatives in Congress and state legislatures?