Bench Memos

Law & the Courts

Smearing Justice Scalia on Science—Part 1

In a New York Times Magazine piece, Emily Bazelon contends that Justice Scalia “was a skeptic about science.” (I’m quoting the subheadline, which Bazelon may not have written, but I think that it fairly captures her argument.) It would be far more accurate to say that he was a skeptic about his own mastery of scientific knowledge and about the mastery that other laymen claimed to have.

Bazelon’s claim about Scalia is a common one on the Left, which likes to mis-imagine itself as the party of science. So let’s take a look at Bazelon’s feeble evidence in support of her contention:

1. In 1987, Scalia dissented (in Edwards v. Aguillard) from the Court’s holding that a Louisiana law that required “creation science” to be taught along with “evolution science” violated the Establishment Clause. Bazelon claims that Scalia

saw the case as a question about certainty: What can we really know for sure? Pointing to “ample uncontradicted testimony that ‘creation science’ is a body of scientific knowledge, rather than revealed belief,” he chided his colleagues for treating the evidence for evolution as “conclusive.”

Scalia’s dissent does not support the notion that he “saw the case as a question about certainty” (by which, as the context suggests, Bazelon means scientific certainty). As the reader of his dissent will quickly discover, Scalia instead objected to the majority’s deciding the constitutional question “on the gallop, by impugning the motives of [the law’s] supporters.” He also pointed out (among other things) that the law itself defined “creation science” as “the scientific evidences for creation and inferences from those scientific evidences” and thus that the Court, in the current procedural posture of the case, “must assume” that the law does not “require the presentation of religious doctrine.”

Here’s the full passage (emphasis added) from which Bazelon clips her two quotes:

The people of Louisiana, including those who are Christian fundamentalists, are quite entitled, as a secular matter, to have whatever scientific evidence there may be against evolution presented in their schools, just as Mr. Scopes was entitled to present whatever scientific evidence there was for it. Perhaps what the Louisiana Legislature has done is unconstitutional because there is no such evidence, and the scheme they have established will amount to no more than a presentation of the Book of Genesis. But we cannot say that on the evidence before us in this summary judgment context, which includes ample uncontradicted testimony that “creation science” is a body of scientific knowledge, rather than revealed belief. Infinitely less can we say (or should we say) that the scientific evidence for evolution is so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary, so that the legislation’s stated purpose must be a lie. Yet that illiberal judgment, that Scopes-in-reverse, is ultimately the basis on which the Court’s facile rejection of the Louisiana Legislature’s purpose must rest. 

When Bazelon says that Scalia was “pointing to ‘ample uncontradicted testimony …,’” she conveniently leaves out that he was referring only to “the evidence before us in this summary judgment context.” And he did not “chide his colleagues for treating the evidence for evolution as ‘conclusive’” but rather—and, again, based on the limited summary-judgment record—“for treating “the scientific evidence for evolution [as] so conclusive that no one could be gullible enough to believe that there is any real scientific evidence to the contrary.”

Bazelon invokes Harvard biologist Stephen Jay Gould on her side. I’m a longtime admirer of much of Gould’s work. (I particularly like his persuasive explanation for the demise of the .400 hitter.) But in his critique Gould makes the same mistake of not understanding that Scalia is discussing the evidence in the summary-judgment record.

Bazelon specifically cites Gould as scolding Scalia for thinking that evolution aims to discover the “origin of life.” But Scalia was summarizing the testimony of witnesses in the legislature. Plus, it would seem that Gould is using the phrase “origin of life” and “ultimate origin” much more narrowly than those witnesses were (and much more narrowly than Bazelon seems to realize). Take, for example, the statement of one witness (as summarized by Scalia) that “Evolution posits that life arose out of inanimate chemical compounds.” As I understand his essay, Gould would say that statement isn’t really about the ultimate origin of life since it starts with the given of inanimate chemical compounds.

What’s more, Justice Brennan’s majority opinion itself treats evolution as addressing the “origin of life”: “The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life.” (Emphasis added.) So why the one-sided bashing of Scalia?

More in Part 2.

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