Bench Memos

Law & the Courts

Re: Smearing Justice Scalia on Science

Some follow-up to my two posts criticizing Emily Bazelon’s New York Times Magazine article for its incoherent attacks on Justice Scalia’s supposed hostility to science:

Cyberlaw expert (and former Scalia clerk) Ian Samuel wrote a series of tweets last week in which he explained that Bazelon’s article “ends with, but does not appear to understand, the exact anecdote that contradicts its thesis”—her complaint, that is, that Scalia “even refused to join part of a 2013 opinion, by Justice Thomas, that laid out basic principles of human genetics in textbook fashion.” (See my point 6.)

Emily Bazelon undertook to respond to Samuel in a Facebook post. (She also responds in a P.S. to part of one of my points; I reply to her in a comment on her post and will simply refer the reader to that exchange.) Samuel, a self-described leftist, has written a devastating reply. I encourage you to read the whole thing, but here are some excerpts (italics in original):

Bazelon, in her essay, marvels at Scalia’s hesitance, given that the Court’s opinion simply laid out (in her view) “basic principles of human genetics.” But what she neglects to inform the reader is that, almost immediately after the decision was released, that Court’s opinion was widely criticized by geneticists for making basic mistakes.

I thought it was unfair, in other words, to criticize someone for being humble enough to withhold assent to technical statements that he was not sure were correct. But it is downright weird to do so when those statements turned out not to be quite right.…

Bazelon, in her reply, says she “looked for counterexamples” that would disprove the Scalia Science Wariness Hypothesis, but couldn’t find any.

The ideal counterexample, of course, would be fairly hard to come by. It would have to be a case that also involved the use of DNA, decided around the same time as Myriad Genetics, and would have to commit Scalia to an outcome that he might find politically unpalatable (lest he be accused of simply going along with scientific statements he did not really believe to achieve a convenient result). Ideally, it would be something that would conclusively indicate that Justice Scalia understood and accepted the basic science about DNA, which is what Bazelon charges Scalia with doubting, and was able to work with it. But Bazelon says that “no one [she] talked to could think of an example” like that.

But, actually, there is one. And it is far from obscure—it’s an opinion that Jeffrey Rosen, writing for the New Republic, called the Justice’s “smartest, wittiest ruling of all time,” and “one of the best Fourth Amendment dissents ever.” It’s Justice Scalia’s dissent in Maryland v. King, decided just ten days before Myriad Genetics.

The issue in King was whether the Fourth Amendment permits the government to take a DNA sample from an arrestee using an oral swab—even if there is no reason to believe that doing so will reveal any wrongdoing, and even if the person is later acquitted of the crime for which he is arrested.… The Court, in an opinion by Justice Kennedy, said yes—that using DNA in this way was an acceptable way to “identify” someone, and was in that sense no different than a fingerprint.

Justice Scalia, in a dissent joined by Justices Ginsburg, Sotomayor, and Kagan, disagreed. He criticized the Court’s “strange silence on the actual workings of the DNA search at issue here,” and then proceeded to discuss those workings at length, along with the mechanics of of the FBI’s DNA database (known as CODIS). The dissent also compares, in detail, the differences between DNA sampling and photography, fingerprinting, and even the use of so-called “Bertillon” measurements (such as noting an arrestee’s height, shoe size, etc., on the back of a photograph).…  

The King dissent, it is true, does not contain any mention of nucleotides or the other technical terms that so unhelpfully litter the Myriad Genetics opinion. But its engagement with the science and practice of DNA identification is no less deep—it is simply phrased in language that can be understood by a reader without graduate training in molecular biology. More importantly, the dissent simply makes no sense as a document if (as Bazelon suggests) Justice Scalia was wary about the basic science of DNA. By way of refuting the Court’s ridiculous “identification” theory, Scalia argues that in fact what makes DNA “a valuable weapon” in law enforcement’s arsenal, he says, is “the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known.” How could a person who doubted DNA science believe that?

So, no, Justice Scalia was not wary of science. In fact, the cautious spirit he displayed in Myriad Genetics is in the best tradition of the scientific method.​

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