Folmsbee: Justice Scalia leaves behind scientific legacy


Sai Folmsbee, Columnist

Only two weeks ago, Justice Antonin Scalia died, leaving a vacancy in the U.S. Supreme Court. But Scalia leaves behind more than just an open seat; he was a powerhouse of intellectual and passionate opinions that, while often arguably controversial and wrongheaded, few could ever hope to match. And while Democrats view this as a chance to finally swing the long-standing conservative-leaning court toward the middle, and Republicans are blocking President Obama’s nomination to prevent that, one essential aspect of Scalia’s presence is being forgotten. Scalia had a mixed, but undoubtedly unique, take on the role of science in the courtroom, a trait that will need to be both adopted and improved upon by whomever the next justice may be.

Scalia’s relationship with science is best outlined in his decision in Association for Molecular Pathology v. Myriad Genetics, Inc. The case involved whether a company could patent a gene for medical testing, and ultimately the court unanimously agreed such naturally occurring processes could not be owned in such a way. Although Justice Clarence Thomas wrote the opinion, Justice Scalia wrote a concurrent opinion in which he took issue with the numerous scientific facts described by Thomas. Scalia wrote, “I am unable to affirm those details on my own knowledge or even my own belief.” Many misconstrued this as Scalia’s outward rejection of science, particularly molecular biology, but the truth is much more complex. Instead, Scalia was willing to admit he did not fully understand the biology behind the decision but was confident enough in his understanding of the case so he could still weigh in on it.

If only the other justices were so honest. Scalia was absolutely right, as the primary opinion was riddled with distressing scientific inaccuracies. It described cDNA as “composite DNA,”, instead of “complementary DNA.” This was important, since DNA versus cDNA was the major topic of contention, and the court decided “cDNA is patent eligible because it is not naturally occurring.” This is false, as the enzyme reverse transcriptase can easily create cDNA in a number of natural systems. Even more telling was the amateurish language used, which anthropomorphized cellular processes to an absurd degree. For example, Thomas wrote, “Each codon either tells the ribosomes which of the 20 possible amino acids to synthesize or provides a stop signal that ends amino acid production.” The Supreme Court should be able to understand the nuances of the facts of the case, and it is worrying that the complex process of translating DNA into RNA into protein is presented as a codon talking to a ribosome.

There are many more errors in this opinion, as well as bizarre details that make little sense to the case, but the point is obvious: The Supreme Court, even with months to research and teams of experts to consult, still struggled to hold anything greater than a high-school level of scientific understanding. And the only one among them willing to admit it was, amazingly, Scalia.

To be clear, Scalia certainly also had a troubled relationship with science. In a 2006 case concerning climate change, he stated, “The Court’s alarm over global warming may or may not be justified.” Even more concerning, he supported the teaching of so-called “creation science” in 1987. To call him a strong ally of science would be misguided.  But still, his approach to these scientific topics serve as valuable reminders of how influential a Supreme Court justice can be when it comes to science.

As technology continues to advance, there will likely be more and more legal cases requiring a complex knowledge of science. The Supreme Court has already taken action blocking President Obama’s new rules involving greenhouse gas emissions in an effort to curtail climate change. Increasingly, these judicial non-scientists will be making key decisions on decidedly scientific issues. In this way, making such scientific errors in their decisions will be seen as much more egregious in the eyes of history.

Naturally, it would be ideal to nominate a new justice with a deep and broad scientific knowledge. But to find someone with that skill set, who is also an accomplished legal mind and has the political savvy to survive the hearing process, is incredibly unlikely. Instead, perhaps we should be seeking someone who, in some ways, will be similar to Scalia. Someone willing to say there are scientific topics outside of his or her understanding and would be able to know when to consult appropriate experts. Although Scalia leaves behind a starkly conservative legacy, his humility for science should not just be maintained, but expanded.

Sai Folmsbee is a Feinberg graduate student. He can be contacted at [email protected]. If you would like to respond publicly to this column, send a Letter to the Editor to [email protected]

The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.