Did Justice Scalia Believe in Dinosaurs? An Investigation

Ian Samuel
Dec 24, 2016 · 8 min read

“I think it’s much more interesting to live not knowing than to have answers which might be wrong.” —Richard Feynman

This weekend, the New York Times Magazine delivered the Christmas present most of us were wishing for most ardently: the written opinions of its staff about prominent people who had died in 2016. In particular, Emily Bazelon wrote a piece entitled “Antonin Scalia Didn’t Trust Science.” The article is correct that Justice Scalia died in 2016, and the photograph of him at the top is genuine so far as I can tell, but that’s about as much as can charitably be said about it.

Criticism of Justice Scalia in the New York Times Magazine, of course, is not exactly news. But as I wrote on Twitter, Bazelon’s closing got my attention—and she has now written a reply, posing a few questions, that I said I would address.

Myriad Genetics and Scalia’s Concurrence

The details are in the Twitter thread linked above, but the short version is this. In 2013, the Supreme Court decided a case called Association for Molecular Pathology v. Myriad Genetics, which was about whether you can patent human genes. The Court’s answer was unanimous: no, because Myriad Genetics (the patent holder) did not “create anything.” The company simply “found an important and useful gene” that occurred naturally in human beings, but you can’t patent the discovery of a natural phenomenon. Simple enough, and entirely correct.

Before getting to those straightforward principles, however, the opinion by Justice Thomas opens with a long and incredibly tedious section on the minute details of molecular biology—stuff like this:

The exons-only strand is known as messenger RNA (mRNA), which creates amino acids through translation. In translation, cellular structures known as ribosomes read each set of three nucleotides, known as codons, in the mRNA. 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.

It goes on like this at some length. Take my word for it: this level of detail is absolutely not necessary to answer the legal question at issue in the case.

Justice Scalia therefore wrote a brief concurrence, joining the Court’s opinion except for this opening section and “some portions of the rest of the opinion going into fine details of molecular biology,” on the grounds that he could not responsibly sign on to these details given that he was not a molecular biologist and did not know whether these “fine details” were accurate. Instead, “having studied the opinions below and the expert briefs presented here,” he thought it sufficed to decide the case 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.”

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.

In response to my criticism (as well as some other points by Ed Whelan), Bazelon has posted a brief reply on Facebook. She says that she does remember the criticisms of the Court’s opinion at the time, and indeed that Slate “ran a piece about it … while [she] was there.” Actually, Slate ran two pieces, and it is instructive to lay them side by side. The first, by Bazelon herself, covered the basics of the decision and lauds the result as “wise and sensible.” But she also commented then, as she has commented now, on Scalia’s concurrence:

Scalia wouldn’t join the part of the opinion explaining the molecular biology that’s key to this case, but to my inexpert eyes, Thomas’ description looked pretty good.

That was on June 13, at 2:51pm. On its own, this is not right: the fine details of the sort I quoted above are not, in any sense, “key to this case,” but whatever. About nineteen hours later, Slate ran a second piece about the decision, by Noam Prywes, a Ph.D. candidate in chemistry at Harvard. This one had a… somewhat different tone.

Prywes’ piece for Slate was entitled “The Supreme Court’s Sketchy Science: Their BRCA patent ruling reads like an earnest seventh grader’s book report.” Prywes says that the meaning of the Court’s decision is “complicated significantly by the court’s sketchy understanding of molecular biology,” and criticizes in particular the “lengthy opening section”—the part that Justice Scalia refused to join—as reading like “an earnest seventh grader’s book report.” Prywes’ mockery is ruthless, and frankly, well-earned:

The court’s strain to understand this science is manifest in the overly respectful, declarative language used in the ruling. Statements such as “the study of genetics can lead to valuable medical breakthroughs” are simply adorable.

Guess which section of the opinion that adorable little nugget appears in? You guessed it.

The comparison between Bazelon’s reaction (“looked pretty good” to “my inexpert eyes”) and the reaction of an actual chemist captures this entire controversy in miniature. And Bazelon is therefore simply wrong when she says, in her reply, that “Part 1-A of the opinion is that it’s the part with the basic science intro and info” and “isn’t the stuff, as I understand it, that scientists criticized.” That section contains a great deal more than “basic science intro” and was, indeed, the object of a great deal of well-earned criticism, including from Prywes and others. (And for that matter, Justice Scalia’s concurrence was specifically restricted to the “fine details” of molecular biology, wherever they appeared in the opinion—the “basic science” is exactly what he rested his opinion on.)

Bazelon also notes that one error identified in the PLOS blog post by Ricki Lewis (saying that cDNA stands for “composite DNA” rather than “complementary DNA”) was only in the opinion’s syllabus, and has since been corrected. That appears to be true, but that is not the only error Lewis identified. Footnote 8 of the opinion, for example, describes a “pseudogene” as resulting from “the random incorporation of fragments” of cDNA. Lewis’ post alleges that this is wrong (though there is then a further debate in the comments on the question):

That’s not the definition I recall or use in my book. A pseudogene in a classical sense results from a DNA replication error that makes an extra copy of a gene. Over time, one copy mutates itself into a form that can’t do its job. The pseudogene remains in the genome like a ghost of a functional gene. The mutations occur at random because the pseudogene, not being used, isn’t subject to natural selection. The globin gene locus on chromosome 11 is chock full of pseudogenes. And how is the Supreme Court’s definition of a pseudogene supposed to happen, in nature or otherwise? A cDNA exists in a lab dish. A gene exists in a cell that is part of an organism. How does the cDNA “randomly incorporate” itself inside the cell? Jump in from the dish?

Who is right about this? I do not know; I suspect Bazelon does not know either; and Justice Scalia was candid enough to admit that he certainly did not, and (more importantly) the resolution of the case in no sense depended on this.

Whatever one makes of the various controversies surrounding the Court’s opinion, my point is that I thought it was unfair of Bazelon to withhold disclosure of the existence of any of this criticism in her essay. The reader is never told that in fact the Court’s opinion was widely panned for its discussion of these allegedly “basic” principles—which certainly might affect how one feels about Justice Scalia’s withholding his assent to them.

Scalia in the Lab: DNA Science and Maryland v. King

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. (Everyone agreed that taking a DNA sample from a person convicted of a crime is acceptable, so the Court’s decision only makes a difference for innocent arrestees.) 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). And while conceding that the Court’s approval of a “genetic panopticon” might be “wise” as a policy matter, Justice Scalia doubted “that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

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?

The Spirit Which Is Not Too Sure That It Is Right

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.

I opened with one Feynman quotation; indulge me, because I’d like to end with another. The “first principle,” Feynman once said, is that “you must not fool yourself, and you are the easiest person to fool.” For leftists like me and liberals like Bazelon, it is all too easy to fool ourselves into believing that conservatives are not just politically mistaken, but actually rubes. Such beliefs are tantalizing because they suggest that we are something better than merely correct—no, we are more sophisticated.

Such beliefs are counterproductive, for many reasons, but as this is a post about science, I will simply close by saying that they are even worse than than unhelpful: they are wrong.

Ian Samuel

Written by

Climenko Fellow and Lecturer on Law at Harvard Law School; co-host of @FirstMondaysFM.

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