Anthony Murray, educated at a Jesuit law school at a time when I would have thought that that still meant something, worries at great length that—gasp—some Supreme Court justices might actually believe in natural law. To him, this would run the risk of introducing religious considerations into cases—all those involving the contraceptive mandate—where he thinks they don’t belong.
He seems to be some sort of legal positivist influenced by Oliver Wendell Holmes, as he frequently cites that tart-tongued justice as if his word should be the last:
Supreme Court Justice Oliver Wendell Holmes emphasized the danger of invoking divine morality when he wrote, in a 1917 opinion, “The law is not a brooding omnipresence in the sky.” He elaborated a year later, in a Harvard Law Review article titled “Natural Law.” Holmes noted we all have impulses that convince us, as individuals, of what is and is not true. He called those impulses a system of “Can’t Helps”: We can’t help believing them because, to us,they seem so true. “Men to a great extent believe what they want to,” Holmes wrote, “although I see in that no basis for a philosophy that tells us what we should want to want.”
Addressing the subject of “jurists who believe in natural law,” Holmes wrote that they “seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.” But he argued that this notion—“our truth is cosmic truth”—was entirely unfounded. Among all of our wishes, Holmes pointed out, the desire to live probably ranks the highest. But does that fundamental urge give us a right to life? No, said Holmes: “The right to life is sacrificed without a scruple not only in war, but whenever the interest of society, that is, of the predominant power in the community, is thought to demand it.” At that point, he wrote, “the sanctity disappears.”
Like Thomas Jefferson, who famously called for a “wall of separation between church and state,” Holmes believed that personal beliefs had no place in judicial decisions.
In other words, natural law is mere subjectivity, as is all religious belief. The only possible authority for judges is that of the majority, embodied in law. To be sure, he never inquires into what justifies the authority of the majority. Why should citizens or judges obey laws? In so doing, are we doing anything other than bowing to the superior force of the majority? Does their might make them right? Perhaps he would affirm this, though I don’t know how many of “the people” would follow him abandoning all recourse to justice outside the will of the majority.
What’s more, he clearly doesn’t really understand natural law, which he ties too closely to religion. Had he actually read St. Thomas, or any scrupulous commentator (not including Oliver Wendell Holmes), he would have understood that, according to Thomas (not to mention virtually every other proponent of natural law of whom I am aware), natural law depends upon reason, not faith, indeed upon a reason that all human beings, regardless of creed, are said to share.
Properly understood, then, Murray is afraid that some Supreme Court justices would have a high regard for reason, a reason that would give them a deep and abiding concern with justice and a respect for the rule of law, not to mention the role of legitimate majorities in settling questions that are matters of prudence.
I have seen no evidence that either Justice Scalia or Justice Thomas has actually invoked extraconstitutional considerations in his decisions. Murray misconstrues the evidence he adduces. The instance he cites from Thomas is a plausible interpretation of the First Amendment, not an invocation either of religion or of natural law. And the quotations from Scalia are simply affirmations of the religious legitimacy of government, much like that the Apostle Paul offers in his letter to the Romans.
