By Hadley Arkes, May 2017

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?

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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.

https://www.firstthings.com/article/2017/05/the-moral-turn