Earlier this week, I wrote about how the Federal Judicial Center (FJC) — the in-house, federally funded think tank of the judicial branch — recently published a new edition of its Reference Manual on Scientific Evidence. The new edition contains a chapter on “Climate Science” that more or less would resolve any serious climate litigation in favor of climate-activist plaintiffs.
It was a particularly bold move to release this new edition in the middle of a congressional appropriations cycle. The judiciary is always hard-up for money and generally tries to avoid angering its appropriators. Federal bureaucrats and plaintiff allies laundering climate activism through the judiciary is exactly the sort of thing that would, in fact, anger appropriators.
Apart from the politics of it, though, should they be doing it at all? Should the FJC really be in the business of taking sides in active litigation?
It’s ridiculous to have to ask the question at all, but ask I did. In fact, I asked Princeton’s McCormick Professor of Jurisprudence, Robert P. George, a leading ethicist and longstanding expert in the role of science in public law.
Professor George told me that “Government agencies and government-funded organizations that are supposed to be ideologically non-partisan should be, well, ideologically non-partisan. But many are not — and have not been for some time.” He went on, “Often, in an effort to obscure their partisanship, they claim merely to be reporting established scientific facts or ‘settled science.’”
But, Professor George explained, this has always been a mirage: “Evidently, however, some established scientific facts are ‘more equal than others.’” He concluded, “The facts of human embryology, for example, or the fact that a woman cannot become a man or vice versa, or the fact that a man cannot become pregnant, somehow never get a mention. The ideological partisanship is evident in the selectivity.”
Even if one subscribes to the supposed “scientific consensus” on climate issues, choosing to indoctrinate the judiciary in those “facts” but not the actual science underlying other issues that are frequently litigated — like embryology and biological sex — gives the game away. The manual’s science-denying reference to “pregnant people” (p.84) is a further indicator of the bias pervading it. This is not a game the FJC should be playing.
And what of the judges involved in the project? Father Bill Dailey, CSC, a professor of legal ethics at Notre Dame Law School, wondered the same thing on X. He observed, “I’m surprised sitting judges would put their names on a document that seems to operate like an amicus brief.” And he went on to say, “That [Justice] Kagan did so when there are doubtless climate cases pending on cert., that the Manual would seem to resolve in favor of the plaintiffs, arguably raises serious Qs.” Indeed. What were they thinking?
In the end, there’s good reason to think this goes much further for the FJC and its enablers than simple (if real) political malpractice. The federal judiciary needs to bring the FJC in line and put a stop to this nonsense.