Bench Memos

Law & the Courts

Smearing Justice Scalia on Science—Part 2

I’ll continue (and number serially) my examination of Emily Bazelon’s claim that Justice Scalia was a “skeptic about science.” But if you’re short on time, please skip to item 5.

2. Bazelon quotes one former Scalia clerk as not remembering Scalia ever “talking about science.” So what? Should we expect Scalia and other justices to be staying current with the latest advances in biochemistry? Again, I would suggest that Scalia, rather than being skeptical of science, was appropriately modest about his own knowledge of it and skeptical that other laymen (including his law clerks) would have much valuable to say on the topic.

3. Bazelon writes:

At an argument before the Supreme Court in 2006, in a case about climate change, a lawyer for Massachusetts gently corrected Scalia for referring to the stratosphere instead of the troposphere. “Whatever,” Scalia responded. “I told you before I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.”

To say that the case was “about climate change” is to suggest that the justices needed to bring their scientific knowledge to bear in deciding it. But the questions in the case were legal ones. Bazelon faults Scalia for “doubt[ing]” what the majority presented as the “harms associated with climate change.” But Scalia, rather than doubting those, took no position on them. His point (which Bazelon obscures by cutting off the last half of his sentence) was instead that that scientific question was irrelevant to the legal ones: “The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation.”

4. In an amusing move, Bazelon complains that Scalia “also refused to treat social-science research as settled.” So after treating the material sciences as a venerable source of knowledge, Bazelon suddenly expects the same respect to be accorded to “social-science research”?

Bazelon faults Scalia for stating at oral argument that “There’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family [are].” “In fact,” she says, “at that point there was a strong body of evidence showing that children fare as well with gay parents as they do with straight ones.” I won’t bother addressing here what Bazelon calls a “strong body of evidence.” It suffices to point out that a “strong body of evidence” still allows plenty of room for “considerable disagreement”—and also falls far short of having “settled” the matter.

5. Bazelon says that Scalia “contradicted scientific consensus when he declared it ‘very likely’ that the death penalty deters murder.” (Note that she again conflates social science with science.) Here’s the passage from his separate opinion in Glossip v. Gross that she objects to:

Justice Breyer speculates that it does not “seem likely” that the death penalty has a “significant” deterrent effect. It seems very likely to me, and there are statistical studies that say so. [Followed by citations.]

So Scalia’s “seems very likely to me”—which is poking at Breyer’s own “seem likely”—is what Bazelon presents as Scalia “declared.”

Much worse, Bazelon invents the “scientific consensus” that she says Scalia contradicts. The National Research Council report that she links to and touts actually “concludes that research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.” (Emphasis added.)

Summarizing this same report, Breyer accurately stated that it “reviewed 30 years of empirical evidence and concluded that it was insufficient to establish a deterrent effect.” In a gaffe that should disqualify her from writing about science, Bazelon flubs Breyer’s warning that “‘lack of evidence’ for a proposition does not prove the contrary.”

Perhaps it would have been better if Scalia had added that the “statistical studies that say so” had been disputed. But Breyer and Scalia both have unclear scientific support for their intuitions. Why is one, but not the other, the supposed enemy of science?

6. Finally, Bazelon faults Scalia “for refusing to join part of a 2013 opinion … that laid out basic principles of genetics in textbook fashion.”

But as Scalia explained in his three-sentence concurrence in the judgment in the case, he believed that the case could be resolved on the “expert” accounts that “the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.” In short, Scalia voted to decide the case based on “textbook” molecular biology.

For that reason, Scalia found it unnecessary for the majority opinion to go “into fine details of molecular biology” that he “was unable to affirm … on [his] own knowledge or even [his] own belief.”  From the majority opinion, here’s a representative proposition that Scalia regarded himself as unqualified to embrace: “The nucleotides on the DNA strand pair naturally with their counterparts, with the exception that RNA uses the nucleotide base uracil (U) instead of thymine (T).”

As one law professor has observed, Scalia’s refusal to pretend to a scientific understanding that he and his colleagues are unlikely to have might better be understood as intellectual humility, as respect for science. As another points out, his separate opinion can also be understood as involving the difficult and contested question of what qualifies as legislative fact. In no event does it support Bazelon’s claim that Scalia was “a kind of apostate” of science.

Addendum (12/22): I now see that scientists promptly identified errors in the majority opinion’s exposition of what Bazelon thought to be a “textbook” statement of “basic principles.” (H/t Ian Samuel.) Yet further evidence of the wisdom of Scalia’s position.


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