17 October 2020

An Unconsidered Hypothetical

Were I hypothetically on the Senate Judiciary Committee, I very well might have made a speech like this one last week. It's just as much a "question for the nominee" as most other such "questions"…

First, thank you for your time away from your present life-tenured judgeship, Judge Barrett. Not all that long ago, the late Justice Scalia issued a concurring opinion admitting that he did not understand the factual or doctrinal basis of the dispute he was deciding, but concurred anyway because he was convinced by legal writings (from equally or nearly-equal levels of misunderstanding).

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.1

The science actually at issue in Myriad did not require a PhD to comprehend any "fine details of molecular biology." Biology 325, as taught at your own undergraduate institution to juniors and seniors, covers that material as established doctrine and fact.

There is little doubt that, on the Court, you will constantly (and perhaps increasingly) encounter matters requiring at least as much understanding of basic science as any originalist interpretation of the Bill of Rights requires of historiography and linguistics. These will range from understanding the medical basis for evaluating the relationship between a specific procedure and "the health of the woman" to what constitutes evidence that a particular chemical causes cancer (thereby triggering a massive multidistrict bankruptcy proceeding) to the adequacy of environmental impact studies to other issues of invention and inventorship as in Myriad. Justice Scalia found his understanding lacking at even that level. This leads to two questions.

1. Wouldn't Justice Scalia have been better advised to recuse himself from Myriad if his ignorance of the subject matter and its doctrine was so profound that he felt obligated to admit it in public? How would you handle a similar situation, regardless of the particular facts?

2. Please explain how your own education — which, according to the summary before me, is remarkably similar to that of your eight prospective colleagues and indeed to Justice Scalia's — will enable you to do better.

*  *  *

Because it's not possible in the give-and-take of a public hearing to discuss what this really means, though, I would not demand a response to this three-quarters-of-a-century-old piece of science fiction (written by a biochemist with a PhD from Columbia, I might add), and a discussion of how it relates to jurisprudence.

Hardin remained silent for a short while. Then he said, “When did Lameth write his book?”

“Oh—I should say about eight hundwed yeahs ago. Of cohse, he has based it lahgely on the pwevious wuhk of Gleen.”

“Then why rely on him? Why not go to Arcturus and study the remains for yourself?”

Lord Dorwin raised his eyebrows and took a pinch of snuff hurriedly. “Why, whatevah foah, my deah fellow?”

“To get the information firsthand, of course.”

“But wheah’s the necessity? It seems an uncommonly woundabout and hopelessly wigmawolish method of getting anywheahs. Look heah, now, I’ve got the wuhks of all the old mastahs—the gweat ahchaeologists of the past. I wigh them against each othah—balance the disagweements—analyze the conflicting statements—decide which is pwobably cowwect—and come to a conclusion. That is the scientific method. At least”—patronizingly—“as I see it. How insuffewably cwude it would be to go to Ahctuwus, oah to Sol, foah instance, and blundah about, when the old mastahs have covahed the gwound so much moah effectually than we could possibly hope to do.”2

That, however, is the real point. And it is one that is perhaps more obvious when dealing with the natural sciences than with, say, linguistic analysis of eighteenth-century texts; but that it is more obvious does not necessarily make it more (or less) compelling. I would not inquire into the Hand Formula, or the concept of "boundary conditions" — let alone the boundary conditions, instrumentation and measurement requirements, and equilibrium assumptions applicable to the Coase and Arrow Theorems. Not at this hearing, anyway; the slaughter of certain kinds of sacred cows needs to take place elsewhere, where there are appropriately sanitary conditions for dealing with the blood (and the steaks). <SARCASM> Besides, as soon as I got the word "sacred" out I'd be accused of religious intolerance. Well, I suppose that's true, albeit not entirely relevant: I don't tolerate religious doctrine and other forms of sectarianism in public discourse. </SARCASM>

  1. Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 596 (2013) (Scalia, J., concurring). The first part of the last sentence is correct; the last half, however, is not, nor does it grapple with the "obvious to those skilled in the art" problem.
  2. Isaac Asimov, Foundation (1951, adapted verbatim from shorter work 1943)