Scalia: Judges Are Not Biochemists (but can be Historians)

June 14th, 2013

In Association for Molecular Pathology v. Myriad Genetics, Inc., Justice Scalia wrote separately to stress that based on his own knowledge as a judge, he could not “affirm” or in the lingo, take judicial notice, of Part I-A of the opinion that discusses some details of genetics and DNA.

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, 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.

After this case was argued, I posed the question of whether judges can be experts in biochemistry. Relatedly, can judges be experts in history, such as trying to understand the history of the right to keep and bear arms?

Gawker posted a (characteristically) silly attack on Scalia, noting that he won’t join the full opinion “because he doesn’t believe in genes.” Of course Scalia believes in genes. His point is that he lacks the knowledge or data to restate it in a judicial opinion. Chris Green praises Scalia for exhibiting “intellectual humility.” I agree with Chris, and appreciate the fact that he acknowledged that he, as a judge, lacks the ability to fully judicialize (yes I made up that word) this science.

However, I don’t think this position is necessarily consistent with other statements Scalia has made, in what I have dubbed a long-standing debate about whether judges can be experts. Scalia has compared the skill of being a historian to the skill of being a scientist, with respect to a patent case.

SCALIA: Right. I mean, that is false. Some people say, you know, ”What are you Scalia, a historian? You’re going to figure out what this man in 1791, when the Bill of Rights was ratified – ” Yes. I can do that, just as I can decide patent cases.

What do I know about patents? I know nothing. But I listen to each side. They bring – that’s what the adversarial system is all about; each side has an interest in bringing forth the best evidence possible. So, just as I can decide a patent case by evaluating – in fact, it’s even easier for me to evaluate historical evidence than it is for patent evidence for Pete’s sake.

Judges do this all the time. It’s the council who have to be expert, or who have to know where to point the judge’s for expert advice. And I don’t see why judges cannot do history. They have to do history all the time.

So which way does this cut? Scalia did not accept what the advocates told him–the same data that 8 other justices were able to wrap their minds around.

Paul Horwitz wrote a thoughtful reply to my earlier post arguing that perhaps once difference between history and patent cases is that in the DNA case, judges *have* to turn to this area of expertise, whereas in constitutional law cases, judges *do not have* to turn to history. Scalia goes out of his way to *not* profess an expertise in science when it is necessary to decide the case, but at the same time becomes an expert in history when–as Paul argues (I don’t express an opinion here)–history is not necessary to decide a case like Heller (though all 9 justices turned to originalism).

Update: More from Will Baude.

Indeed, Justice Scalia puts me in mind of the work of Allison Orr Larsen, who’s written several interesting articles that are skeptical of the Supreme Court’s treatment of questions of legislative fact.  (I think that the molecular biology in Myriad would qualify as a legislative fact rather than an adjudicative fact, but I am not 100% sure I always understand the distinction.) Given that it is not clear that this is something the Court does well, it may be better for it to do less of it.