*This piece originally appeared on Law360.
by James J. Brosnahan, Senior Trial Counsel, Morrison Foerster
As President Trump applies his whack-a-mole, hammer-them-all-on-the-head theory of leadership, could a Justice Neil Gorsuch legal philosophy join opinions that would declare the president’s actions unconstitutional? It is a lot to ask when the president has just given you the greatest legal gift America can bestow. But if the bestower actually holds up federal money from the University of California or sanctuary cities or does any other of the threatened unconstitutional actions in violation of established constitutional doctrine, the court will have to check and balance him as the country’s founders intended.
Judge Gorsuch is, at times, a positivist. He is outside mainstream American judicial decision-making. I have looked at the headings and results in all 237 of his decisions. I read those that might reflect U.S. Supreme Court issues in the future — those cases I examined much more closely.
When the words "Oxford degree" are first uttered in the confirmation hearing, it will have a mesmerizing effect on the senators. He got a degree in legal philosophy there in 2004. He studied under the tutelage of John Finnis, a natural-law theorist, who according to Google supports the Catholic Church on a range of contentious issues. Finnis believes the state should deter public approval of “homosexual” behavior. He opposes gay unions and believes they are an assault on heterosexual marriage. More to the point of Gorsuch’s legal philosophy, his teacher Finnis opposes looking for the “ought” in natural-law ethics. At the heart of all Western legal theory, there is the “is vs. ought” division; the United States Constitution is all about the ought.